Latest / rationally BASED / Episode 9 | Birthright Citizenship: The Deep Dive

Transcript

Episode 9 | Birthright Citizenship: The Deep Dive · rationally BASED

• 0:00
  SPEAKER_00: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_00: Catherine, it's Birthright Citizenship Day.
• 0:06
  SPEAKER_00: What's on deck?
• 0:07
  SPEAKER_02: Well, a whole bunch of birthright citizenship.
• 0:09
  SPEAKER_02: We're finally doing the deep dive that we promised you all.
• 0:12
  SPEAKER_02: First, Elon testified in Congress on birthright citizenship last week.
• 0:17
  SPEAKER_02: Uh so we'll break down all of that testimony, then we'll discuss the government's briefing in the case and go through a number of the amicus briefs there as well.
• 0:25
  SPEAKER_02: Fourth and finally, we'll revisit originalism.
• 0:27
  SPEAKER_02: If originalism can't get us to the right answer here, should it matter?
• 0:31
  SPEAKER_00: Let's dive in.
• 0:45
  SPEAKER_00: I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.
• 0:49
  SPEAKER_02: And I am Catherine Johnson with Center of the American Experiment.
• 0:52
  SPEAKER_00: Well, before we get started, we just wanted to thank all of our listeners.
• 0:55
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• 1:01
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• 1:06
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• 1:26
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• 1:41
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• 1:45
  SPEAKER_00: Okay, with that, where should we start?
• 1:47
  SPEAKER_02: Let's start in Congress.
• 1:49
  SPEAKER_00: Oh, yes, that was exciting.
• 1:50
  SPEAKER_00: Testifying, it was my first time testifying in Congress.
• 1:53
  SPEAKER_00: It was in the Senate Judiciary Committee, subcommittee on the Constitution.
• 1:58
  SPEAKER_00: And so lots of interesting people there.
• 2:00
  SPEAKER_00: Um the Democrats, a lot of them actually showed up and were hanging out for most of the hearings.
• 2:05
  SPEAKER_00: So I guess Corey Booker was in and out.
• 2:07
  SPEAKER_00: Maisie Hirona was there for quite a long time, Alex is a Padilla from California was there.
• 2:13
  SPEAKER_00: Uh and so it's like a lot of the heavy hitters, like this were a judicial judicial nominations hearing.
• 2:18
  SPEAKER_00: You know, I would have been asked if I had ever sexually assaulted somebody.
• 2:21
  SPEAKER_00: I think Basie Haroto asks that.
• 2:23
  SPEAKER_00: She did not ask me that.
• 2:24
  SPEAKER_00: In fact, nobody asked me pretty much anything.
• 2:27
  SPEAKER_02: Yeah, there was I watched, I think, the whole like two, three hours and kind of drumming my fingers because you didn't really get asked a whole lot of questions, unfortunately, until um, I guess Ted Cruz.
• 2:39
  SPEAKER_00: Aaron Powell Yeah, well, so I'd like to say that, or think anyway that the Democrats were afraid to ask me any questions.
• 2:44
  SPEAKER_02: No, they were.
• 2:45
  SPEAKER_02: They totally were because your intro, you get like a monologue, and yours was great.
• 2:49
  SPEAKER_02: I'm sure they were all just like, I don't know, over my head.
• 2:52
  SPEAKER_00: Actually, Peter Welch, the ranking Democrat member uh on the subcommittee, uh, he's from Vermont.
• 2:57
  SPEAKER_00: He was he was a he was a great guy, actually.
• 2:58
  SPEAKER_00: Um I think um operated the hearing quite well uh along with uh Senator Schmidt.
• 3:04
  SPEAKER_00: And at the end, Peter Welch came up to me and said, You're that guy in law school that I was always struggling to keep up with.
• 3:10
  SPEAKER_00: And so I actually thought that that was uh very, very nice and generous of him uh to say after I basically sat silently for two hours.
• 3:16
  SPEAKER_00: But Ted Cruz did ask me a line of questions, uh finally about an hour into it.
• 3:21
  SPEAKER_00: And so I was excited.
• 3:21
  SPEAKER_00: I'm like, oh, finally, I'm being asked a question.
• 3:23
  SPEAKER_00: And then my heart started sinking because it was just a series of yes-no questions, right?
• 3:27
  SPEAKER_02: He was like cross-examining me, but like he like had the answers he wanted in his head and was just wanted you to repeat them back.
• 3:34
  SPEAKER_00: Exactly.
• 3:34
  SPEAKER_00: And the answers were correct.
• 3:36
  SPEAKER_00: Correct, correct.
• 3:36
  SPEAKER_00: He basically asked me a series of questions about Dred Scott and how the Fourteenth Amendment was really intended to just undo the Dred Scott decision.
• 3:45
  SPEAKER_00: It was just about citizenship for the free people.
• 3:47
  SPEAKER_00: And so he was setting that up for me.
• 3:49
  SPEAKER_00: And there was one point where I was thinking, and I probably should not have done this uh because well, you know, I hadn't said anything for an hour, and I said, well, let me say something interesting.
• 3:57
  SPEAKER_00: That's what I was thinking to myself.
• 3:58
  SPEAKER_00: But Ted Cruz was an ally in this, right?
• 4:00
  SPEAKER_00: And you don't want to throw curveballs to your allies uh when it comes to these kinds of questions.
• 4:06
  SPEAKER_00: So at one point he asked me though, and the Dred Scott decision led directly to the Civil War, correct?
• 4:12
  SPEAKER_00: And I said, yes, principally because it invalidated the Missouri Compromise, which is not the answer he was looking for.
• 4:18
  SPEAKER_00: He was looking for something about free blacks and free black citizenship, and because that relates to the topic uh of the hearing.
• 4:24
  SPEAKER_00: And so you could see him, like he was thinking for a second, does this affect what I'm about to say?
• 4:28
  SPEAKER_00: Should I just continue?
• 4:30
  SPEAKER_00: And he just continued.
• 4:30
  SPEAKER_00: He's like, okay, I don't think this affects uh uh the the this exchange.
• 4:34
  SPEAKER_00: So he went on, and I actually kind of felt bad about saying that because I feel like it threw him off.
• 4:38
  SPEAKER_00: I had to say something.
• 4:39
  SPEAKER_00: I had to say something.
• 4:40
  SPEAKER_00: You had to say something.
• 4:41
  SPEAKER_02: The thing that I hate about these is everyone has like everyone's already determined, all of the senators know what they feel and how they believe on the issue.
• 4:48
  SPEAKER_02: Like none of them really seem to come into these with like a good faith attempt to hear people out and maybe change their opinions.
• 4:55
  SPEAKER_02: It's like their lines of questioning, their big displays that they make the interns hold up behind them, they already know what they want to say.
• 5:02
  SPEAKER_02: So it's a little bit of a like a show show situation, but I'm glad they do it anyway.
• 5:06
  SPEAKER_00: Yeah, and and I felt like a prop, that's for sure.
• 5:09
  SPEAKER_00: But like if if if that's helpful in any way, I'm happy to do it.
• 5:12
  SPEAKER_00: I I do wonder if we got rid of cameras uh that it would be a more serious endeavor.
• 5:16
  SPEAKER_00: They would have to show up and listen.
• 5:18
  SPEAKER_00: I will say like like Maisie Hirono, Alex Padilla, um, and uh they maybe there was one other Democrat, but they would sat there for most of the first hour, hour and a half, which I thought um was actually quite uh interesting.
• 5:30
  SPEAKER_00: Yeah.
• 5:31
  SPEAKER_00: So good good good for them.
• 5:32
  SPEAKER_00: I wish they had asked me questions, but but alas they didn't.
• 5:34
  SPEAKER_00: So what did you learn from the hearing?
• 5:35
  SPEAKER_00: Or who who did you like?
• 5:36
  SPEAKER_00: I mean, you didn't hear from me much, so who who you they asked Peter Schweitzer a lot of questions.
• 5:41
  SPEAKER_02: Yeah, they asked pretty much they asked some of the other people a lot of questions.
• 5:43
  SPEAKER_02: Your kind of counterpoint, maybe like the legal scholar on the other side.
• 5:47
  SPEAKER_02: Um she answered a lot of questions, which I think we can get into in some of her views, which it would have been more interesting, I think, if they would have said, okay, what do you think now?
• 5:55
  SPEAKER_02: You know, like if they would have been a bit of a back and forth.
• 5:58
  SPEAKER_02: I know at one point you said like you knew the answer to something that they were going back and forth on.
• 6:02
  SPEAKER_02: It's like you can't.
• 6:02
  SPEAKER_00: I knew the answer to most things that they were going back and forth.
• 6:05
  SPEAKER_00: Okay, the cla classic Elon uh hubris uh right there.
• 6:08
  SPEAKER_00: But uh, there was a point which I know we'll talk about where they're like, oh, what was the dicta in Wankamark?
• 6:12
  SPEAKER_00: What did Wankamark actually held?
• 6:13
  SPEAKER_00: That I'm just sitting there looking at my notes and I'm like, I have the quote right here.
• 6:17
  SPEAKER_00: Like, I can answer this question, but alas, nobody asked me asked me anything because Peter Schweitzer got all the all the airtime.
• 6:23
  SPEAKER_00: Trevor Burrus, Jr.
• 6:24
  SPEAKER_02: He had some pretty interesting stuff to say.
• 6:25
  SPEAKER_02: And I did uh go ahead and I've read a decent portion of his book now.
• 6:29
  SPEAKER_02: It's a very good book.
• 6:29
  SPEAKER_02: He has this book, Invisible Coup, where he basically claims that other countries are using mass migration and specifically our birthright citizenship as we currently understand it to assume power in America and use it for um for their own means, places like the CCP, the Communist Party in China.
• 6:48
  SPEAKER_00: Um and they're doing it in a particular place, though, in the Asia Pacific, right?
• 6:52
  SPEAKER_00: There's like this island in the Aaron.
• 7:00
  SPEAKER_02: But in particular, there's this island.
• 7:02
  SPEAKER_02: Do you think it's Saipan?
• 7:04
  SPEAKER_02: Is that how you say it?
• 7:04
  SPEAKER_00: I think it's Saipan, is what I remember him saying at the hearing.
• 7:07
  SPEAKER_02: Aaron Powell I think it's Saipan.
• 7:08
  SPEAKER_02: And basically, um you can go to Saipan as a Chinese or Russian national without a visa for up to 45 days.
• 7:16
  SPEAKER_02: And so there's this whole industry of people who are using Chinese in particular, couples with a lot of money are using these islands to pop out American children.
• 7:27
  SPEAKER_02: Because if you're born on this island, Saipan or any of these other ones are like near Guam, I guess.
• 7:31
  SPEAKER_02: I'd never even heard of them.
• 7:32
  SPEAKER_02: Uh, you immediately get a birth certificate from America, and that kid is um American, which is really insane.
• 7:40
  SPEAKER_02: And I was trying to figure out like how how many times has this happened?
• 7:43
  SPEAKER_02: Is this a one-off thing?
• 7:44
  SPEAKER_02: Um in his book, Peter Schweizer says, no one knows, first of all, like there's no way to tell because there's no information that is collected by our government that would allow us to know the answer to this.
• 7:55
  SPEAKER_02: Um but he thinks it's somewhere between 750,000 and 1.5 million Chinese people that have been born with American citizens.
• 8:04
  SPEAKER_02: Just in Saipan.
• 8:05
  SPEAKER_02: And are living in China.
• 8:06
  SPEAKER_02: I think he means in all of the United States.
• 8:08
  SPEAKER_02: Trevor Burrus, Jr.
• 8:08
  SPEAKER_00: So the the Saipan issue is is actually quite crazy and interesting.
• 8:13
  SPEAKER_00: So it it doesn't deal with constitutional birthright citizenship as such, though it does relate to our case.
• 8:19
  SPEAKER_00: It has to do with statutory birthright citizenship.
• 8:21
  SPEAKER_00: Because the Fourteenth Amendment says persons born in the United States and subject to the jurisdiction thereof are citizens.
• 8:28
  SPEAKER_00: And so there's this question of what is in the United States.
• 8:31
  SPEAKER_00: If you're in an unincorporated territory like Guam, for example, or Saipan, um are you are you in the United States?
• 8:39
  SPEAKER_00: And in a series of cases called the insular cases, at the turn of the turn of the 20th century, so early 1900s, um late 1800s, the Supreme Court basically said that if you're in an unincorporated territory, you are not in the United States for purposes of most constitutional rights.
• 8:56
  SPEAKER_00: And so there's statutory birthright citizenship.
• 8:59
  SPEAKER_00: And so there's there's a Congress enacted a statute providing that if you're born in Saipan um subject to the jurisdiction of the United States, uh then you're a citizen.
• 9:08
  SPEAKER_00: So it's actually statutory.
• 9:11
  SPEAKER_00: Now, the real problem here seems to be it's this combination of the statutory birthright citizenship in Saipan in combination with these lax visa rules.
• 9:20
  SPEAKER_00: So when did the lax visa rules happen?
• 9:22
  SPEAKER_02: Under Obama, and apparently it was like to promote tourism of the region, these islands, and yeah, it he only opened it up to like China and Russia.
• 9:32
  SPEAKER_02: So I don't totally get his uh what he was trying to do there, but yeah, it was it was under Obama, so it was not that long ago.
• 9:39
  SPEAKER_02: Um there's also some other programs that Peter Schweizer talks about in his book where if you are um Chinese, you can basically like start a company in America and get a visa if you end up making over 800,000 or a million dollars in revenue in the US and employ five people.
• 9:58
  SPEAKER_02: Okay.
• 9:59
  SPEAKER_02: So like they're encouraging people to start companies here that are are have foreign interests.
• 10:04
  SPEAKER_02: It's really weird.
• 10:05
  SPEAKER_02: And a lot of this happened um under Obama.
• 10:08
  SPEAKER_02: So it's all kind of like pretty recent that we're seeing um all these things happen.
• 10:13
  SPEAKER_02: There's also like this surrogacy thing that's a little bit crazy, and a couple of the stories have gone viral recently.
• 10:19
  SPEAKER_02: Like there's a Chinese couple living in California um who police recently showed up to their house and they had let me see, well, oh, oh, 15 children under the age of three in their house because they had had all these children with the man, the man's DNA with different surrogates in America.
• 10:36
  SPEAKER_02: And total they have like 26 kids by surrogates to have all these American children and get the benefits of having American citizen children, which are kind of a lot.
• 10:46
  SPEAKER_02: Uh first of all, that guy has ties to the CCP if the Communist Chinese Party wants potentially up to 1.5 million voters in America.
• 10:53
  SPEAKER_02: That's apparently what they have.
• 10:54
  SPEAKER_02: Um and then also because of chain migration.
• 10:57
  SPEAKER_02: So the way our immigration laws work, if you have one person in your family that's a citizen, it's way easier for the rest of your family to come and be citizens too.
• 11:04
  SPEAKER_00: Aaron Ross Powell So the interesting thing about so the surgeon is crazy for any number of reasons.
• 11:09
  SPEAKER_00: For purposes of the case that's being heard at the Supreme Court next week on April 1st, the Saipan issue is particularly interesting because of the statutory birthright citizenship question.
• 11:20
  SPEAKER_00: A lot of people think that maybe Chief Justice Roberts will be able to avoid the constitutional question in Trump v.
• 11:26
  SPEAKER_00: Barbara, the birthright citizenship case, by saying that whatever the Fourteenth Amendment originally meant, Congress, when it paired the language back in the Immigration and Nationality Act in 1940 and 1952, it used the language subject to the jurisdiction.
• 11:41
  SPEAKER_00: A lot of people say, well, Congress believed uh that that meant uh if you were here, if your parents were here illegally or temporarily, it didn't matter.
• 11:50
  SPEAKER_00: You were uh a U.S.
• 11:51
  SPEAKER_00: citizen because you were subject to the jurisdiction of the United States in the relevant sense.
• 11:55
  SPEAKER_00: So whatever the 14th Amendment means, maybe statutorily anybody born here, irrespective of the parents, are birthright citizens.
• 12:02
  SPEAKER_00: But if the Supreme Court takes that route, I think that means the Chief Justice has a Saipan problem, right?
• 12:09
  SPEAKER_00: Because it means that, well, therefore, Congress, without ever having relaxed the visa rules for Saipan, without ever having addressed this issue, would would have inadvertently created this huge problem of potentially hundreds of thousands of um foreign nationals having children in Saipan.
• 12:26
  SPEAKER_00: Now again, Peter Schweitzer was pushed on this.
• 12:28
  SPEAKER_00: We don't know the exact numbers, um, but he looked at how many Chinese birth tourist companies there were, and there were tons and tons of that.
• 12:35
  SPEAKER_00: And so um this so if the Supreme Court goes a statutory route, uh I think there is a huge Saipan sort of problem.
• 12:41
  SPEAKER_00: So but one way or another, Peter Schweitzer got a lot of play.
• 12:44
  SPEAKER_00: I mean, it it's it's a very dynamite story, so to speak.
• 12:47
  SPEAKER_00: Um, and so there he got a lot of play uh at the hearing, uh, even though you know no nobody asked me, you know, any questions, which I keep coming back to.
• 12:55
  SPEAKER_00: But oh well.
• 12:55
  SPEAKER_00: It was a great question.
• 12:56
  SPEAKER_02: We'll ask you questions here today.
• 12:58
  SPEAKER_02: You have a podcast.
• 12:59
  SPEAKER_00: That's right.
• 13:00
  SPEAKER_02: So we can talk about it here.
• 13:01
  SPEAKER_02: One of the other things that um, you know, I talked about the the woman who's kind of your counterpart on the other side, Professor Professor Amanda Frost.
• 13:08
  SPEAKER_02: Her main argument was that there's already some sort of statute or regulation making it illegal to enter the U.S.
• 13:15
  SPEAKER_02: for the purposes of having a child, and that we should just be enforcing that law more, I think, which I thought was interesting because I don't know exactly what that law looks like.
• 13:24
  SPEAKER_02: What did you think of that argument?
• 13:25
  SPEAKER_02: Aaron Ross Powell, Jr.
• 13:25
  SPEAKER_00: Well, so that's one of the many things that I would have loved uh to respond to.
• 13:29
  SPEAKER_00: So Professor Amanda Frost, um uh my colleague from the University of Virginia Law School, another uh law professor, made this argument that there's already this statute on the books, as you said, a word that makes it illegal to come for the purpose uh of having uh a child.
• 13:42
  SPEAKER_00: And so birth tourism is already illegal, she said, and it's just sort of a matter of enforcing it.
• 13:47
  SPEAKER_00: But there's a lot more uh to this story.
• 13:49
  SPEAKER_00: So it's actually not a statute, it's in the code of federal regulations, and the only reason it's in the code of federal regulations is because the Trump administration put it there in 2020, so it hadn't been there before.
• 14:00
  SPEAKER_00: And I don't know, did the Biden administration enforce any of those rules uh between 2021 and 2025 when the Biden administration uh was in power?
• 14:10
  SPEAKER_00: So simply having um it in the code of federal regulations or even having it in a statute doesn't mean it's going to be enforced, and of course, people still violate the law all the time.
• 14:20
  SPEAKER_00: And so it's not like uh exactly the best argument, uh, but moreover, uh a tourist visa, it's not actually for a tourist visa.
• 14:30
  SPEAKER_00: The the the the code of federal regulations at issue here applies to non-immigrant visas.
• 14:35
  SPEAKER_00: Well, non-immigrant visas can last from three months to ten years.
• 14:40
  SPEAKER_00: So it's the the the birth birth tourism issue, it's like, well, you could come for a year for the purpose of having a baby.
• 14:48
  SPEAKER_00: You could be only four months pregnant and nobody could tell.
• 14:51
  SPEAKER_00: But more than that, it's not just birth tourism that's the problem, right?
• 14:54
  SPEAKER_00: It's this question of having people who have little connection to this country who are here for a three-year student visa and then who have a child and then go back to their home country, and their child didn't grow up here and has minim they have minimal connection to the country.
• 15:07
  SPEAKER_00: So it's not just birth tourism.
• 15:08
  SPEAKER_00: There's this bigger question in the case about temporary visitors more generally.
• 15:12
  SPEAKER_00: And so none of that would s be solved by you know this provision in the code of federal regulation that doesn't appear to ever have really been um enforced any in any way.
• 15:20
  SPEAKER_02: Yeah, and even if there is a regulation, I think we have a lot of other, as we've just talked about, laws that make it so that it's almost incentivized to you do this birth tourism.
• 15:29
  SPEAKER_02: And yeah, like you say, I there were plenty of stories in Peter Schweizer's book where people would be on a 10-year visa and have three kids here and just go back and forth.
• 15:37
  SPEAKER_02: And then yeah, they're raised under the Chinese Communist Party, for example, being filled with propaganda their whole lives and then come here when they're 18.
• 15:45
  SPEAKER_02: Like that is obviously a huge problem.
• 15:47
  SPEAKER_02: And I don't think this regulation addresses that problem whatsoever.
• 15:50
  SPEAKER_00: Aaron Powell And I should also point out that it doesn't actually make it a crime, I don't think, to to come for the purpose of having a baby.
• 15:56
  SPEAKER_00: It just gives the immigration officials discretion to deny you entry if it appears to them that you're coming for the purpose of having a baby.
• 16:03
  SPEAKER_02: Aaron Powell Well, and yeah, I I I noticed that in his book too, because there was a example of someone who ran like a birth tourism shop, basically, you know, where they bring in all of these um mothers from China, and they she got caught, but they had to charge her with sort of like separate crimes and ended up basically going to jail for less than a year.
• 16:20
  SPEAKER_00: Aaron Ross Powell Yeah.
• 16:21
  SPEAKER_00: So in other words, this isn't really gonna stop the problem, which is something I would have uh loved to talk about if of course I had been asked.
• 16:28
  SPEAKER_00: But but Catherine, as you like to remind me, I've got a podcast.
• 16:32
  SPEAKER_00: Are you salty at all?
• 16:33
  SPEAKER_00: I'm I'm I'm not saying it was a waste of my time.
• 16:35
  SPEAKER_00: Uh I'm just saying I was expecting a little more uh excitement.
• 16:39
  SPEAKER_00: I did appreciate Mike Lee at the end, though, after you know, I was sitting silent for two hours.
• 16:43
  SPEAKER_02: Based Mike Lee.
• 16:45
  SPEAKER_00: Yeah, based Mike Lee.
• 16:46
  SPEAKER_00: And he um asks me, Professor Worman, do you want to add anything?
• 16:50
  SPEAKER_00: You know, after I'd been basically silent for two hours.
• 16:53
  SPEAKER_00: So I was like, sure, here's two minutes why everybody else is wrong about everything.
• 16:56
  SPEAKER_00: So I did I did actually get the last word uh at the hearing, which was nice after sitting totally stone faced uh for two hours.
• 17:02
  SPEAKER_00: But okay, well, let me say one other thing about Professor Frost's argument uh about there is already sort of this legislative fix to the birth tourism problem.
• 17:10
  SPEAKER_00: Right?
• 17:10
  SPEAKER_00: Her view was that birth tourism isn't actually a problem, but if it is a problem, you could solve it legislatively.
• 17:15
  SPEAKER_00: There's already this code of federal regulation issue.
• 17:17
  SPEAKER_00: Well, let me just say that this is a really interesting point, and I wish I had had a chance to elaborate on this too.
• 17:22
  SPEAKER_00: That speaking of legislative solutions, all of the problems that the other side talks about, there are legislative solutions to them.
• 17:29
  SPEAKER_00: So a big part of Professor Frost's testimony and the testimony from others on the other side of the hearing was can you imagine what a mess and what a nightmare this would be if the EO, the executive order, were to apply retroactively, which it doesn't now, but the implications are that it could apply retroactively.
• 17:44
  SPEAKER_00: Well, what if you can't prove your your parents can't prove their citizenship?
• 17:48
  SPEAKER_00: What about their per parent citizenship?
• 17:50
  SPEAKER_00: What if you lost your birth certificate?
• 17:51
  SPEAKER_00: What if you can't have other methods of proof?
• 17:54
  SPEAKER_00: And so it's like, well, you know what who could solve that problem?
• 17:57
  SPEAKER_02: Congress.
• 17:58
  SPEAKER_02: Congress.
• 17:58
  SPEAKER_02: Yeah.
• 17:59
  SPEAKER_00: If they only did something, that sounds like a legislative problem, actually.
• 18:02
  SPEAKER_00: Like Congress could provide uh what proofs are required to to prove you know your parents' citizenship, uh, your parents' immigration status.
• 18:09
  SPEAKER_00: Like again, most parents who are here on some immigration status like have proof of their particular immigration status, so it should be actually particularly easy to know.
• 18:17
  SPEAKER_00: But that sounds like a legislative solution.
• 18:19
  SPEAKER_00: Another legislative solution, one thing that the Democrats did at this hearing was the gentleman to my left, a very nice gentleman, uh Mr.
• 18:26
  SPEAKER_00: Baranka, uh, served in the Marines.
• 18:28
  SPEAKER_00: His brothers all served in the Marines, and they were really playing up his story because I guess his parents were there illegally.
• 18:35
  SPEAKER_00: Um and so it would first of all, I'm actually not clear if that's from you know from his story.
• 18:40
  SPEAKER_00: They didn't say anything about his mother.
• 18:41
  SPEAKER_00: Uh and so I so Chuck Cooper, who is also a witness for the Republicans, was asked, well, under the EO, would Mr.
• 18:48
  SPEAKER_00: Barranca not be a citizen?
• 18:50
  SPEAKER_00: And Mr.
• 18:50
  SPEAKER_00: Cooper said, Well, the EO's prospective.
• 18:52
  SPEAKER_00: And so he got some pushback on that because well, the implications are it could be retrospective as well, if if President is Trump is right on the constitutional question.
• 19:00
  SPEAKER_00: But it's also like I would have said, I actually don't have any clue about his mother's status.
• 19:04
  SPEAKER_00: I don't know enough about the father.
• 19:06
  SPEAKER_00: But putting all that aside, this sounds like Congress could fix it too.
• 19:10
  SPEAKER_00: You know a c a a power that Congress has in Article 1, Section 8 of the Constitution?
• 19:15
  SPEAKER_00: The naturalization power.
• 19:17
  SPEAKER_00: So just because somebody is not a birthright citizen doesn't mean Congress couldn't say, you know what, we're gonna grandfather in everybody who was born here before the executive order or before 2020, if they're if they were born before 2020, or if their parents came before 2020.
• 19:32
  SPEAKER_00: Or Congress can come up with some other legislative solution and say, if you served in the military, but your parents were here temporarily or illegally, you can get you we will naturalize you, you'll get citizenship.
• 19:42
  SPEAKER_00: It could have humanitarian rule rule.
• 19:44
  SPEAKER_00: But in other words, just because you aren't a birthright citizen doesn't mean Congress can't exercise its naturalization power to make you a citizen.
• 19:53
  SPEAKER_00: So all of this stuff about consequences, how will you prove citizenship?
• 19:57
  SPEAKER_00: The gentleman to my left, he wouldn't be a citizen.
• 19:59
  SPEAKER_00: Okay, well, you know who can solve all this problem?
• 20:02
  SPEAKER_00: Congress.
• 20:03
  SPEAKER_00: So what does that have to do with the constitutional question?
• 20:06
  SPEAKER_00: Congress could solve all these problems, and I know that's expecting a lot from Congress to actually do something, but you you're a fan of getting rid of the filibuster or imposing the talking filibuster.
• 20:14
  SPEAKER_02: At least the talking filibuster probably gets- I mean, the Congress can't do anything.
• 20:17
  SPEAKER_02: Why can't Congress do a single dang thing?
• 20:19
  SPEAKER_02: I agree.
• 20:20
  SPEAKER_02: It's just infuriating.
• 20:21
  SPEAKER_02: But that's not the point here because that doesn't have any impact on the constitutional question, as you say, we shouldn't take that into account that Congress is ineffective because that doesn't relate, even though it's true.
• 20:32
  SPEAKER_00: Trevor Burrus, Jr.: So basically Congress should get rid of the silent filibuster, impose a talking filibuster.
• 20:37
  SPEAKER_00: Yes.
• 20:37
  SPEAKER_00: And right after the Save America Act, right?
• 20:39
  SPEAKER_00: Yes, it should be.
• 20:40
  SPEAKER_00: Number two.
• 20:42
  SPEAKER_00: The second thing it should do is draft a statute called the Birthright Citizenship Expansion Act, where it says all of these people born here to parents who are here illegally or temporarily are not citizens constitutionally.
• 20:54
  SPEAKER_00: But we hereby, as a matter of legislative grace, in the national interest, uh, and because we believe in you know the justice of the cause or whatever, we declare to be naturalized citizens anybody born in the United States prior to 2020, some date or whatever, or if you'd served in the military, Congress could do it.
• 21:12
  SPEAKER_00: So it should pass this Birthright Citizenship Expansion Act.
• 21:15
  SPEAKER_00: It would solve all of these problems.
• 21:16
  SPEAKER_00: But more to the point, it has nothing to do, as you said, with the constitutional question.
• 21:19
  SPEAKER_00: So I was actually quite surprised that there was so much uh emphasis in the hearing about the consequences which could be solved by Congress if it really came to that.
• 21:28
  SPEAKER_00: So I found that quite surprising and interesting.
• 21:30
  SPEAKER_02: Aaron Ross Powell Well, and the other thing they did with the the Marine, which I thought was really interesting, he's obviously a very sympathetic case where you you you feel for this guy who is clearly a great American.
• 21:39
  SPEAKER_02: He went and served in the Marines.
• 21:41
  SPEAKER_02: But this is like the classic thing that Democrats do, which is that they take the most sympathetic person to their argument and they expand it uh to make it seem like this is everyone in this category, right?
• 21:51
  SPEAKER_02: So, like I always think about abortion, they do this with where they're like, Well, abortion has to be legal because what about the woman who was raped by her dad?
• 22:00
  SPEAKER_02: Or whatever, they take the most extreme circumstance.
• 22:02
  SPEAKER_02: It never happens, very rarely.
• 22:03
  SPEAKER_02: And when it does, it's tragic and awful and horrible.
• 22:06
  SPEAKER_02: But they make it seem like that's everything.
• 22:07
  SPEAKER_02: The vast majority of abortions, of course, are just elective.
• 22:11
  SPEAKER_02: It's the same thing here.
• 22:12
  SPEAKER_02: The vast majority of people who are granted birthright citizenship are not in the Marines.
• 22:16
  SPEAKER_02: However, this man is clearly, you know, a stand-up guy.
• 22:18
  SPEAKER_02: Thank you for his service.
• 22:20
  SPEAKER_02: I think it's not a good argument, though, because it doesn't apply to most people.
• 22:23
  SPEAKER_00: Trevor Burrus, Jr.: Yeah, it tugs on the heartstrings.
• 22:25
  SPEAKER_00: And let me just say maybe there's a reason Chuck Cooper was asked the question instead of me, because they knew if like I had been asked, like, so is he not a citizen under your view?
• 22:33
  SPEAKER_00: I would have said something.
• 22:34
  SPEAKER_00: Well, let me tell you about Congress's naturalization power and congressional prerogatives, and Congress should get off its butt and do something.
• 22:40
  SPEAKER_00: So they didn't dare ask me a question.
• 22:41
  SPEAKER_02: Yeah, they're all like the senators are like, no, no, no, no.
• 22:43
  SPEAKER_00: But you make a good point about the tugs tug on the heartstrings.
• 22:46
  SPEAKER_00: I did get a lot of that.
• 22:47
  SPEAKER_00: And I am not a tug-on-the-heartstrings type guy.
• 22:49
  SPEAKER_02: You don't say.
• 22:51
  SPEAKER_00: Thanks, Catherine.
• 22:53
  SPEAKER_00: I'm a rational.
• 22:55
  SPEAKER_00: Rationally based on the phone.
• 22:56
  SPEAKER_00: This is about rational.
• 22:57
  SPEAKER_02: It's not emotionally based, you know.
• 22:59
  SPEAKER_00: Exactly.
• 23:00
  SPEAKER_02: Okay, let's get into your argument specifically.
• 23:04
  SPEAKER_02: You did get five minutes, as you said, um, in the intro and then kind of in the outro.
• 23:08
  SPEAKER_02: But let's summarize your argument overall, and people can watch it.
• 23:11
  SPEAKER_02: I think we should link it in the comments and people can watch it there too in full, but let's summarize it here for people.
• 23:16
  SPEAKER_00: Yeah, and if you follow us on YouTube, which you all should, we did post uh this five minutes.
• 23:20
  SPEAKER_00: It was the best five minutes, hands down, of the hearing, I think, right?
• 23:23
  SPEAKER_00: Do you agree?
• 23:24
  SPEAKER_00: Yeah, of course you agree.
• 23:26
  SPEAKER_00: Um, which is basically a five-minute summary uh of the of the argument in favor of the Trump administration's executive order.
• 23:32
  SPEAKER_00: And if you've been listening to this podcast, you know we've gotten to some of this at the end of a few of our episodes.
• 23:36
  SPEAKER_00: But so basically there are a couple steps to this argument, and that I mentioned in in the five minutes.
• 23:41
  SPEAKER_00: One is the common law rule.
• 23:42
  SPEAKER_00: So everybody thinks that the common law rule was just birth on the sovereign soil means you are a subject of the sovereign at common law.
• 23:49
  SPEAKER_00: But how do you explain the exceptions for like ambassadors and invading soldiers?
• 23:53
  SPEAKER_00: Well, it turns out that the rule actually never was birth on soil.
• 23:57
  SPEAKER_00: That was never enough.
• 23:58
  SPEAKER_00: The rule was always actually birth on the sovereign soil to parents who were under the sovereign's protection.
• 24:06
  SPEAKER_00: So why are invading soldiers, their children, not uh birthright subjects?
• 24:10
  SPEAKER_00: Well, because the parent soldier was not under the sovereign's protection.
• 24:14
  SPEAKER_00: Why are ambassadors excluded?
• 24:16
  SPEAKER_00: Because an ambassador is under the protection and within the allegiance of a foreign sovereign.
• 24:21
  SPEAKER_00: And so their child is born under the protection and allegiance of a foreign sovereign.
• 24:25
  SPEAKER_00: So I mentioned allegiance.
• 24:26
  SPEAKER_00: Where does allegiance come in?
• 24:27
  SPEAKER_00: Well, it's intimately tied to protection.
• 24:30
  SPEAKER_00: At common law, the rule is based on this mutual compact, and it's very, very important.
• 24:34
  SPEAKER_00: All subjects of the king receive protection of the king in exchange for owing allegiance to the king, which meant in part fidelity and loyalty and faith, but really just meant like we will follow the sovereign's law.
• 24:47
  SPEAKER_00: We agree to obey by the sovereign, this to abide by the sovereign's law.
• 24:51
  SPEAKER_00: So that was the mutual compact between sovereign and subject.
• 24:55
  SPEAKER_00: Protection on the one part, allegiance on the other part.
• 24:58
  SPEAKER_00: Could foreigners be temporarily subjects of the king while visiting in the realm?
• 25:04
  SPEAKER_00: Well, yes, because you come into the realm, you agree to give the king allegiance.
• 25:09
  SPEAKER_00: It doesn't mean you're not a citizen or subject of some other country, but while you're in a foreign sovereign's land, you give that sovereign allegiance in exchange for which that sovereign gives you protection.
• 25:20
  SPEAKER_00: And so at common law, the children born of aliens who at least came lawfully, who weren't invaders and who weren't ambassadors, who came lawfully, who were under the protection of the king, they were birthright subjects, but it didn't apply to invaders, it didn't apply to ambassadors.
• 25:37
  SPEAKER_00: Now, one thing that I show in my scholarship and that I emphasized is to be under the king's protection, to enter into this mutual compact as an alien, as a foreigner, required the king's consent.
• 25:48
  SPEAKER_00: Which actually makes sense when you think about it.
• 25:51
  SPEAKER_00: If you weren't in the realm with the king's consent, if the king had forbidden you from entering the realm, like why would you be under the king's protection?
• 25:58
  SPEAKER_00: Would you have entered into this mutual compact?
• 26:00
  SPEAKER_00: And so we have a bunch of historical data on what were called safe conducts, these royal passports that expressly gave aliens permission to enter the realm and granted them the king's protection.
• 26:11
  SPEAKER_00: We have statutes.
• 26:12
  SPEAKER_00: Magna Carta granted protection to aliens unless they had been previously and publicly forbidden from entering.
• 26:20
  SPEAKER_00: So that's actually pretty dynamite evidence.
• 26:22
  SPEAKER_00: Magna Carta, not too shabby, the great charter, right?
• 26:26
  SPEAKER_00: That says if you if you come here with our permission, uh or impl implied permission at least, you're under the sovereign's protection, but not if we've forbidden you.
• 26:34
  SPEAKER_00: There's a statute from Edward III in 1353 that said merchant strangers may safely and surely and under our protection come and dwell in our said realm.
• 26:44
  SPEAKER_00: So what's the implication of all this?
• 26:45
  SPEAKER_00: At common law, everybody thought, well, birth alone, birth alone, that's that's enough, but it wasn't enough.
• 26:50
  SPEAKER_00: It was birth to parents under the sovereign's protection, and to be under the sovereign's protection as a foreigner required the sovereign's consent in the statutes.
• 26:59
  SPEAKER_00: There is zero evidence, there is zero evidence that if an alien had come contrary to the laws, they would have been thought to be under the sovereign's protection for purposes of the of the rule.
• 27:09
  SPEAKER_00: Okay, so that's the common law.
• 27:10
  SPEAKER_02: Aaron Powell Can I ask one question?
• 27:12
  SPEAKER_02: So uh the protection though, it does it apply to if you're here, even if you are not under the sovereign's protection, what if you commit a crime, you're still gonna go to jail?
• 27:21
  SPEAKER_02: Like the rule of law still applies to you.
• 27:24
  SPEAKER_02: How is that different?
• 27:24
  SPEAKER_00: Aaron Powell Yeah.
• 27:25
  SPEAKER_00: So part of this actually connects to jurisdiction, right?
• 27:29
  SPEAKER_00: Because part of the reason you were subject to the king's laws as a foreigner is because you agreed to be within the allegiance of the sovereign in exchange for that protection.
• 27:38
  SPEAKER_00: So being under the protection of the sovereign is what makes you subject to the criminal laws, for example, and it's what makes you subject to the sovereign's jurisdiction, to the benefit of the sovereign's jurisdiction.
• 27:48
  SPEAKER_00: You're allowed to sue in the sovereign's courts, for example.
• 27:51
  SPEAKER_00: You're allowed to make contracts and sue on your contracts, you're allowed to vindicate your rights in the sovereign's courts even as a foreigner.
• 27:57
  SPEAKER_00: Why?
• 27:57
  SPEAKER_00: Because you're under the sovereign's protection.
• 28:00
  SPEAKER_00: If you were not under the sovereign's protection because you would come illegally, does the sovereign have to give you access to the sovereign's courts?
• 28:06
  SPEAKER_00: Right?
• 28:07
  SPEAKER_00: The sovereign could make you perhaps punishable uh according to the laws, or maybe you could be punished under the military law, martial law, or the law of nations because you would come illegally.
• 28:18
  SPEAKER_00: But do you have to be subject to the sovereign's courts if you come illegally and outside the protection?
• 28:23
  SPEAKER_00: So there's actually a case from the War of 1812 where we were at war with Great Britain, and there were some British subjects who had contracts with Americans in America, and the Americans said, Oh, we don't have to um pay our debts back, and you can't sue us because you are an enemy alien.
• 28:40
  SPEAKER_00: You're a British subject.
• 28:41
  SPEAKER_00: You you belong to a sovereign, you're a subject of a sovereign with whom we're at war.
• 28:45
  SPEAKER_00: And there's a case that said, a lawful residence, this is a Clark against Maury, a lawful residence implies protection and a capacity to sue and be sued.
• 28:54
  SPEAKER_00: So what Chancellor Kent said in this case from the War of 1812, even British subjects who are from a country at war with the United States, if they're legally here, if they are lawfully present in the United States or under the protection of the United States, a lawful residence implies protection and a capacity to sue and be sued.
• 29:12
  SPEAKER_00: In other words, being there lawfully was a precondition for being under the sovereign's protection, and being under the sovereign's protection was a precondition for being amenable to the subjects to the sovereign's jurisdiction.
• 29:25
  SPEAKER_00: So that's the connection between the common law rule of protection and the 14th Amendment's language of subject to the jurisdiction.
• 29:32
  SPEAKER_00: Now, as you said, it's possible that you could be subject to some of the sovereign's jurisdiction.
• 29:40
  SPEAKER_00: Maybe aliens who come illegally and are caught at the border can be subject to the criminal law.
• 29:46
  SPEAKER_00: Doesn't mean we have to give them full access to our courts.
• 29:49
  SPEAKER_00: So for example, if you're caught at the border, you're actually declared to be outside the United States for purposes of for various purposes.
• 29:56
  SPEAKER_00: But if you kill a border guard or if you kill somebody who's in this detention camp, could we prosecute you criminally?
• 30:04
  SPEAKER_00: Yeah, probably.
• 30:05
  SPEAKER_00: Does it mean you are subject to the full jurisdiction of the United States?
• 30:08
  SPEAKER_00: Do we have to let you in and and sue on your contracts and access our courts and our civil jurisdiction?
• 30:14
  SPEAKER_00: I'm highly dubious.
• 30:16
  SPEAKER_00: And so a lot of discussion at the hearing was, okay, but if you're subject to the criminal laws, shouldn't that be enough?
• 30:23
  SPEAKER_01: Yeah.
• 30:23
  SPEAKER_00: And Chuck Cooper and I were saying, no, you have to be subject to the complete jurisdiction of the United States for purposes of the amendment.
• 30:31
  SPEAKER_00: And Senator Herona was like, well, you know, you're not really being originalist, right?
• 30:36
  SPEAKER_00: It doesn't say complete jurisdiction, it just says jurisdiction.
• 30:40
  SPEAKER_02: Right.
• 30:41
  SPEAKER_00: But they told us.
• 30:42
  SPEAKER_00: They told us, the drafters told us it meant a complete jurisdiction.
• 30:47
  SPEAKER_00: And why did that have to be true?
• 30:50
  SPEAKER_00: Because of the Indian tribes.
• 30:52
  SPEAKER_00: The Indian tribes were subject to some U.S.
• 30:55
  SPEAKER_00: jurisdiction.
• 30:56
  SPEAKER_00: Sure.
• 30:57
  SPEAKER_00: They were subject to the General Crimes Act of 1817, but we didn't regulate their contract rights, their property rights, and so they were subject to some jurisdiction.
• 31:05
  SPEAKER_00: And they were under the protection of the United States to a limited extent, but they weren't subject to this complete jurisdiction.
• 31:10
  SPEAKER_00: And everybody knew that if you were an Indian, subject to your tribal relations, you were not a birthright citizen.
• 31:17
  SPEAKER_00: And so again, the only way that works is if you are subject to the complete jurisdiction of the United States.
• 31:22
  SPEAKER_00: And that's what they told us.
• 31:23
  SPEAKER_00: That's what they told us.
• 31:24
  SPEAKER_00: By jurisdiction, the drafters said, we mean a complete jurisdiction.
• 31:28
  SPEAKER_00: A jurisdiction coextensive with the jurisdiction the United States exercises now over its own citizens, legislative, executive, judicial.
• 31:37
  SPEAKER_00: So again, what's the implication for unlawfully present aliens?
• 31:40
  SPEAKER_00: Well, again, if you're here illegally, then you know maybe you're subject to the criminal laws, but do we have to give you a right to sue at our courts?
• 31:48
  SPEAKER_00: Now, temporary visitors, that's a bit trickier at common law because they were under the sovereign's protection.
• 31:54
  SPEAKER_00: Perhaps you could say they weren't under the complete protection.
• 31:57
  SPEAKER_00: Trevor Burrus, Jr.
• 31:57
  SPEAKER_02: Well, because it was different because they were here legally, because they'd been granted an um they could be here for a certain amount of time.
• 32:02
  SPEAKER_00: Trevor Burrus, Jr.
• 32:03
  SPEAKER_00: Exactly.
• 32:03
  SPEAKER_00: Because while they were there lawfully, they were under the sovereign's protection.
• 32:06
  SPEAKER_00: Okay.
• 32:07
  SPEAKER_00: Whereas I've suggested if you've come illegally, then you would not have been under the sovereign's protection.
• 32:11
  SPEAKER_00: But temporary visitors would have been under the sovereign's protection.
• 32:14
  SPEAKER_00: So but it was debated because is this a complete protection?
• 32:17
  SPEAKER_00: Are they completely subject to the jurisdiction?
• 32:19
  SPEAKER_00: And so there was contestation about temporary visitors.
• 32:23
  SPEAKER_00: So Justice Joseph Story said a reasonable qualification of the rule of birthright citizenship would be that it doesn't cover people itinerantly in the country.
• 32:31
  SPEAKER_00: Right?
• 32:31
  SPEAKER_00: A treatise by Henry St.
• 32:32
  SPEAKER_00: George Tucker, a pretty prominent uh Virginian, flatly stated that temporary visitors were excluded from the birthright citizenship rule.
• 32:40
  SPEAKER_00: Perhaps most interestingly, and this is what I said at the hearing, the military authorities in Louisiana during the Civil War had to decide whether they could conscript into the Union Army children born in Louisiana of French parents.
• 32:55
  SPEAKER_00: And the military authorities concluded they could only do it if their parents were domiciled, if they were permanent residents of the United States, not if their parents were only visiting the United States or temporarily in the United States, which again suggests that if you are a temporary visitor to the United States, even if you have a child born there, you and your children are not subject to the complete jurisdiction of the United States because we can't conscript you under international law, which you think is fake, but uh if you listen to listen to our previous episode.
• 33:24
  SPEAKER_00: But at the time, you know, they thought it was real and they thought like you couldn't conscript temporary visitors.
• 33:29
  SPEAKER_00: There are other ways uh in which uh a nation does not exercise a full jurisdiction over temporary visitors, but the most prominent way is conscription.
• 33:38
  SPEAKER_00: We can't conscript them.
• 33:39
  SPEAKER_00: And so uh for this and other reasons, I've argued that under the common law and under the language of the Fourteenth Amendment, both uh both um children born to illegally present aliens and uh children born to temporary visitors uh would not be subject to this complete jurisdiction and would not have been under the protection, or at least the full protection, of the sovereign uh common law.
• 33:59
  SPEAKER_00: And so that's the argument that I made.
• 34:02
  SPEAKER_00: Nobody really followed up about any of that.
• 34:04
  SPEAKER_00: Um they asked really Chuck Cooper a lot of questions about um you know, which he had actually an even narrower view.
• 34:10
  SPEAKER_02: Aaron Powell Yeah, well he uh he got asked a lot about um this one case Wong Kim arc, which I think we should talk about because you guys disagree a little bit, and I think it goes to your view on temporary visitors, right?
• 34:22
  SPEAKER_02: And the difference between how they do they get granted birthright citizenship or not.
• 34:27
  SPEAKER_02: So let's talk about uh the Won Kim arc case.
• 34:31
  SPEAKER_02: And do you agree with the ruling?
• 34:33
  SPEAKER_00: So Chuck Cooper said he thought Wankamark was wrongly decided.
• 34:38
  SPEAKER_02: Okay.
• 34:38
  SPEAKER_00: So I think Wankamark was probably rightly decided, though actually it was a hard case even under under my view because of this treaty that existed with the Emperor of China that that is that that complicates the matter a little bit.
• 34:50
  SPEAKER_00: But so when they say complete jurisdiction, what I have suggested is that means do we treat the alien similarly to the way we treat U.S.
• 35:00
  SPEAKER_00: citizens in the sense of legislatively, judicially, executive power.
• 35:05
  SPEAKER_00: Are there any limits on our ability to exercise jurisdiction over lawful domiciled permanent residents?
• 35:13
  SPEAKER_00: And I think the answer is no, you could conscript them.
• 35:15
  SPEAKER_00: Courts exercise a general judicial jurisdiction over foreigners domiciled in the United States.
• 35:21
  SPEAKER_00: There's no legislative exemptions to jurisdiction.
• 35:23
  SPEAKER_00: So lawful domiciled permanent residents, domicile meaning like it's your permanent home, they are subject to the complete jurisdiction of the United States in the sense that I have described it.
• 35:34
  SPEAKER_00: This is their complete legislative, executive, and judicial jurisdiction.
• 35:37
  SPEAKER_00: And that's what Juan Kamark was about.
• 35:39
  SPEAKER_00: Juan Kamark's parents were lawfully there and they were domiciled.
• 35:42
  SPEAKER_00: So they were lawful, domicile, today what we would call lawful permanent residents.
• 35:46
  SPEAKER_00: Chuck Cooper thinks even Juan Kamark was wrongly decided because he thinks that you I think he thinks that your parents have to be citizens in order for you to be a citizen if you're born here.
• 35:59
  SPEAKER_00: And the reason is he takes an even narrower view of the term subject to the jurisdiction.
• 36:04
  SPEAKER_00: When when they said complete jurisdiction, there are some statements in the legislative history where they said a political jurisdiction by which they meant not owing allegiance to anybody else.
• 36:15
  SPEAKER_00: Well, if you're still a citizen of some foreign country, don't you owe allegiance to somebody else?
• 36:20
  SPEAKER_00: So there is some evidence, there is some data in the historical record supporting the Chuck Cooper view, the even narrower view that Won K Mark was wrongly decided because we meant that you had to compl your parents had to have no other allegiance whatsoever.
• 36:37
  SPEAKER_02: Right.
• 36:38
  SPEAKER_00: But under my view, um lawful domiciled residents, like Wonky Mark's parents, would actually be subject to the complete jurisdiction of the United States, because I don't know of any exemption to the exercise of a legislative, executive, or judicial power under the law of nations uh over lawful permanent residents.
• 36:56
  SPEAKER_00: So that's what makes my argument different.
• 36:58
  SPEAKER_00: But I'm actually surprised uh how at how much evidence there is for the even narrower view that Chuck Cooper had.
• 37:04
  SPEAKER_02: Aaron Powell Well, one of the things I thought was interesting is that the this idea of the dual allegiance, because now I know a lot of people who are dual, have dual citizenship.
• 37:12
  SPEAKER_02: I think we think that's a very normal thing.
• 37:14
  SPEAKER_02: But what I was reading preparing for this episode was um the framers of this amendment probably did not think that way.
• 37:20
  SPEAKER_02: They probably thought, no, you can only have allegiance really to one country.
• 37:24
  SPEAKER_02: So if you're going to be uh born here in America, you are an American only.
• 37:28
  SPEAKER_02: It's not like you have some other interest in another country.
• 37:31
  SPEAKER_02: Is that right?
• 37:32
  SPEAKER_02: So now the way I think of it in my modern mind, it's pretty common.
• 37:35
  SPEAKER_02: You have you know two two citizenship two places, but back in the day that did not happen.
• 37:39
  SPEAKER_02: You only really had citizenship in one country for the most part.
• 37:42
  SPEAKER_02: Aaron Powell Yeah.
• 37:42
  SPEAKER_00: So it's it's not necessarily that um there was never dual allegiances, right?
• 37:47
  SPEAKER_00: I mean, because the th think about the War of 1812 again.
• 37:50
  SPEAKER_00: I know we love talking about the War of 1812 on this podcast.
• 37:53
  SPEAKER_00: Part of the reason the war was fought was because people born under the British Empire and were therefore British subjects by birth, according to the British uh common law rule, as the British understood it, who had naturalized in the United States.
• 38:07
  SPEAKER_00: They had become U.S.
• 38:08
  SPEAKER_00: citizens, while we no longer recognized their British citizenship.
• 38:13
  SPEAKER_00: But Great Britain recognized their British citizenship and refused to recognize our citizenship.
• 38:17
  SPEAKER_00: Now it's not quite the same thing as dual allegiance.
• 38:20
  SPEAKER_00: It was just conflicting claims, right?
• 38:22
  SPEAKER_00: It's the sovereigns had these conflicting claims to citizenship.
• 38:24
  SPEAKER_00: So I will say that dual allegiances were always understood as this absurdity, this monstrosity.
• 38:30
  SPEAKER_00: The earliest naturalization acts, to this day, by the way, this is still true, requires a foreigner who naturalizes in the United States to abjure all foreign allegiance, to renounce all foreign allegiance, which I think means you cannot be a uh dual citizen.
• 38:44
  SPEAKER_00: But it's tricky because at common law, the the the English jurists recognized that although dual allegiances, dual citizenship, subjectship was kind of an absurdity, and there are some cases actually saying this, under the British rule, it was possible that if you were born in Britain or in England, you were a citizen a subject of England.
• 39:04
  SPEAKER_00: Yeah.
• 39:05
  SPEAKER_00: But it's possible that the king of France claimed you as a citizen because your parents were French or something like that.
• 39:10
  SPEAKER_00: So it was possible, but it was frowned upon.
• 39:13
  SPEAKER_00: It was frowned upon.
• 39:14
  SPEAKER_00: And then in 1967, the Supreme Court decided this case that has sort of been over-read and over-interpreted.
• 39:21
  SPEAKER_00: And so since 1967, we basically say that uh dual citizenship is much more common.
• 39:26
  SPEAKER_00: It's actually super interesting.
• 39:27
  SPEAKER_00: The the case involves whether Congress could declare when you've expatriated, so it involved an individual who voted in a foreign election.
• 39:35
  SPEAKER_00: And the statute provided that if you vote in a foreign election, you lose your citizenship.
• 39:38
  SPEAKER_00: And the Supreme Court said, well, no, you you must voluntarily relinquish your citizenship.
• 39:42
  SPEAKER_00: Congress can't say you forfeited your your citizenship, but that seems super weird because he did voluntarily relinquish it, right?
• 39:48
  SPEAKER_00: By voting in a foreign election.
• 39:50
  SPEAKER_01: Yeah.
• 39:50
  SPEAKER_00: And the statute said if you do that, you relinquish your citizenship and you are charged with knowledge of the law.
• 39:54
  SPEAKER_00: So uh it you know, ignorance of the law is no excuse, they like to say.
• 39:58
  SPEAKER_00: Um and so that was super weird.
• 40:00
  SPEAKER_00: So dual allegiances are certainly more uh uh common um uh today than they than than they were back then.
• 40:06
  SPEAKER_00: So, like, yeah, so if that's true, if dual allegiances were frowned upon, then Wan Kamark is a harder case, right?
• 40:12
  SPEAKER_00: Um because he arguably was still subject to the Emperor of China, because his parents were still subjects of the Emperor of China.
• 40:20
  SPEAKER_00: Um but under my view, again, complete jurisdiction, complete legislative, executive, judicial jurisdiction, and um that applied to his parent, uh Wankamark's parents.
• 40:28
  SPEAKER_00: Now, of course, the other interesting thing about Wankamark was what was actually the holding of Wankamark?
• 40:34
  SPEAKER_00: Does the domicile matter?
• 40:35
  SPEAKER_00: Do you remember at the hearing they were fighting a bunch of like, what's dicta?
• 40:38
  SPEAKER_02: Yeah, you're gonna have to explain this from like what is dicta?
• 40:41
  SPEAKER_02: Okay, let's start there, because there was a lot of back and forth that uh I did not quite understand.
• 40:45
  SPEAKER_00: So um Chuck Cooper's position, uh, and my position is that Wankamark does not address the question that we are presented with today because Juan Kemark's parents were lawful and domicile.
• 40:57
  SPEAKER_02: Wait, you think this whole thing is irrelevant?
• 41:00
  SPEAKER_00: I don't know that it's irrelevant.
• 41:02
  SPEAKER_00: I don't think it answers the question.
• 41:03
  SPEAKER_00: Uh but yeah, maybe that means it's irrelevant.
• 41:06
  SPEAKER_00: Actually, is that the same thing?
• 41:07
  SPEAKER_01: Well i What have they been doing in the last five minutes?
• 41:10
  SPEAKER_00: Um Well, everybody the other side relies on Juan Kamark because they believe Wonka Mark settles this problem.
• 41:16
  SPEAKER_00: I don't think Wan Kamark settles it at all because his parents were lawful and domiciled.
• 41:21
  SPEAKER_00: Now the other side comes back and said, well, that wasn't relevant to the holding.
• 41:24
  SPEAKER_00: They say the only thing that mattered was the place of birth.
• 41:28
  SPEAKER_00: And uh but on the other side, so they they cite things like, well, they talk about if you had been there for i if you're in the United States or Wankamark's parents had been there for mere pleasure or business, that also would have qualified.
• 41:40
  SPEAKER_00: But they don't actually say that.
• 41:40
  SPEAKER_00: That's actually dicta.
• 41:41
  SPEAKER_00: So there's a there's a debate about, okay, you ask what's dicta.
• 41:44
  SPEAKER_00: Okay, to our non-lawyer listeners, what's dicta?
• 41:47
  SPEAKER_00: It's just things that courts say in their opinions that are not necessary to the decision.
• 41:52
  SPEAKER_00: Okay?
• 41:53
  SPEAKER_00: So it's true that in Wankamark and and by the way, dicta is not binding.
• 41:58
  SPEAKER_00: Dicta is not binding.
• 42:00
  SPEAKER_02: So it makes it- it makes those statements that are not relevant to the decision less uh valuable, less correct.
• 42:06
  SPEAKER_02: We can't rely on them as much.
• 42:07
  SPEAKER_00: At most, it's persuasive authority.
• 42:09
  SPEAKER_00: At most, it's some indication of what the court is thinking, but it is not binding precedent.
• 42:14
  SPEAKER_00: Let's put it that way.
• 42:15
  SPEAKER_00: So there is the this passage which talks about uh if if individuals come for business or pleasure, they are subject to the jurisdiction of the United States.
• 42:24
  SPEAKER_00: But that comes from an 18 teens case.
• 42:27
  SPEAKER_00: So it's it's totally predates the 14th Amendment.
• 42:29
  SPEAKER_00: It's not about birthright citizenship.
• 42:31
  SPEAKER_00: And so that is totally dicta in the opinion.
• 42:34
  SPEAKER_00: It's totally irrelevant to the actual holding.
• 42:37
  SPEAKER_00: Uh and the lawfulness of the of the residents and the domicile of the parents was actually relevant to the holding when you look at it.
• 42:44
  SPEAKER_00: This was one of the frustrations I had at the hearing.
• 42:46
  SPEAKER_00: They were at they were going back and forth, Chuck Cooper and Professor Frost.
• 42:50
  SPEAKER_00: Well is dicta, what's dicta?
• 42:51
  SPEAKER_00: What did Wonky Mark have?
• 42:52
  SPEAKER_00: And I had it right here in front of me, the paragraph, and I'm just sitting there being like, Anybody want to ask me a question?
• 42:56
  SPEAKER_00: Anybody?
• 42:57
  SPEAKER_00: Anybody?
• 42:57
  SPEAKER_00: Okay, um, I'm a little, again, salty is believing.
• 42:59
  SPEAKER_00: Yeah, a little salty, a little salty.
• 43:01
  SPEAKER_00: But so here's what the So first of all, the question presented, the court in Wonkimark literally said the question presented is whether a child born of Chinese parents domiciled in the United States, right?
• 43:14
  SPEAKER_00: And not in the embassy services, or are they aren't ambassadors, are is a is a citizen of the United States.
• 43:20
  SPEAKER_00: They so they literally included domicile in the question presented.
• 43:23
  SPEAKER_00: So how can you say that's dicta?
• 43:24
  SPEAKER_00: That's part of the holding, right?
• 43:26
  SPEAKER_00: And here is what the court says every citizen or subject of another country, while domiciled here, is within the allegiance and the protection and consequently subject to the jurisdiction of the United States.
• 43:39
  SPEAKER_00: So again, domicile is directly there and relevant to the holding.
• 43:43
  SPEAKER_00: The court goes on to say Wonke Mark's parents are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here and are subject to the jurisdiction thereof in the same sense as all other aliens residing in the United States.
• 43:58
  SPEAKER_00: So, what do you see here?
• 44:00
  SPEAKER_00: Awful residence, domicile, is what makes you under the protection of the United States in this complete sense, within the allegiance of the United States, and therefore subject to the jurisdiction of the United States.
• 44:10
  SPEAKER_00: So I actually think Juan Kamark uh supports me.
• 44:13
  SPEAKER_00: I think Wan Kamark proves I'm right.
• 44:16
  SPEAKER_02: And so Chuck Cooper has the view that this was wrongly decided.
• 44:19
  SPEAKER_00: Correct.
• 44:20
  SPEAKER_00: He thinks that the parents had to be citizens of the United States because they still mark's parents, although lawful and domiciled, had a political allegiance to the Emperor of China still.
• 44:31
  SPEAKER_00: Because they were still subjects of the Emperor of China.
• 44:33
  SPEAKER_00: Which again could be right.
• 44:35
  SPEAKER_00: It's not totally implausible based on some of the statements they made in the legislative history.
• 44:40
  SPEAKER_00: I just think my view is more consistent with the legislative history and more consistent uh with the common law.
• 44:46
  SPEAKER_02: So are we good here with the Congress and the testimony at Congress?
• 44:51
  SPEAKER_02: Is there anything else you want to add before we move on?
• 44:53
  SPEAKER_00: Aaron Powell Well, thank you for letting me get all of that off my chest.
• 44:56
  SPEAKER_00: Again, I was particularly impressed with my ability to stay totally stonefaced for two hours.
• 45:01
  SPEAKER_00: And now that I've had this episode, um, do you feel better?
• 45:05
  SPEAKER_02: Were you just exploding with thoughts?
• 45:06
  SPEAKER_00: Aaron Powell I I feel much better uh that I finally said my piece, finally got to respond to what everybody said uh at the hearing.
• 45:12
  SPEAKER_00: So should we move on to the government's brief then?
• 45:15
  SPEAKER_02: Aaron Powell Yeah, let's move on because oral arguments start at the Supreme Court on April 1.
• 45:19
  SPEAKER_02: So soon.
• 45:20
  SPEAKER_00: Next week.
• 45:21
  SPEAKER_02: That's very exciting.
• 45:22
  SPEAKER_02: So yeah, let's talk about the government's brief.
• 45:24
  SPEAKER_02: Um what are they arguing?
• 45:26
  SPEAKER_02: Is it your argument or Chuck Cooper's?
• 45:29
  SPEAKER_02: What are they saying?
• 45:30
  SPEAKER_00: So uh it's actually different than Chuck Cooper's argument, and it's different than my argument, though it's closer to my argument.
• 45:36
  SPEAKER_02: Okay.
• 45:36
  SPEAKER_00: So they're not challenging Wankamark.
• 45:38
  SPEAKER_00: I mean, they'd be crazy to challenge Juan Kamark, right?
• 45:41
  SPEAKER_00: I mean Why is that?
• 45:42
  SPEAKER_00: Well, because the the Supreme It's much easier to say, yes, you decided this question 130 years ago, your honors, but this is a different question.
• 45:51
  SPEAKER_00: That is much easier than to get the Supreme Court to overrule a precedent from 130 years ago.
• 45:57
  SPEAKER_02: Okay.
• 45:57
  SPEAKER_02: To say you were wrong.
• 45:58
  SPEAKER_00: Exactly.
• 45:59
  SPEAKER_00: Yes, okay.
• 45:59
  SPEAKER_00: So so they would be crazy to go in and say Wonke Mark was wrong, even if they think that.
• 46:04
  SPEAKER_00: Um so the better to say Wonka Mark doesn't answer these questions.
• 46:07
  SPEAKER_00: Now, remember, so my view was common law, consent was necessary for protection, protection was jurisdiction.
• 46:12
  SPEAKER_00: What they do a more classic, just original public meeting analysis.
• 46:17
  SPEAKER_00: They show that contemporaneously, um many observers, judges, treatise writers, secretaries of state believed that temporary visitors so they don't even talk about illegal aliens.
• 46:27
  SPEAKER_00: They say because that wasn't really a concept back then.
• 46:29
  SPEAKER_00: Right.
• 46:29
  SPEAKER_00: Right?
• 46:30
  SPEAKER_00: Because immigration laws didn't really have like a modern form until 1875 or so.
• 46:34
  SPEAKER_00: So about ten, you know, seven, eight years after the Fourteenth Amendment.
• 46:38
  SPEAKER_00: So most people who came were here legally.
• 46:40
  SPEAKER_00: It was a question of temporary versus permanentism, right?
• 46:42
  SPEAKER_01: Okay.
• 46:43
  SPEAKER_00: And so what the government says is there's a ton of contemporaneous evidence that temporary visitors were thought to be excluded because under international law, which I know Catherine, you think is fake, but they didn't.
• 46:54
  SPEAKER_00: Okay.
• 46:55
  SPEAKER_00: They didn't.
• 46:55
  SPEAKER_00: Seriously, go back and watch our international law episode for me and Catherine's, you know, for for our debate uh about international law.
• 47:01
  SPEAKER_00: So they thought, under international law, uh that somebody here temporarily was not subject to the complete jurisdiction of the United States in the sense of the amendment.
• 47:10
  SPEAKER_00: And so they have some secretaries of state who said this, they have some treatise writers who said this.
• 47:14
  SPEAKER_00: And so then the move that they make.
• 47:15
  SPEAKER_00: So how does this relate to illegal aliens?
• 47:17
  SPEAKER_00: Does this only address temporary visitors?
• 47:19
  SPEAKER_00: The move that they make is that illegal aliens are necessarily temporary.
• 47:24
  SPEAKER_00: Oh.
• 47:24
  SPEAKER_00: That even if you've been here for 20 years, you cannot unilaterally establish a domicile in the United States.
• 47:30
  SPEAKER_02: Trevor Burrus, Jr.: Well, yeah, it should be temporary because we should be actively getting them out.
• 47:34
  SPEAKER_00: Well, okay, fair enough.
• 47:35
  SPEAKER_00: But what if you've been there for 20 years and no one's really enforcing the laws?
• 47:39
  SPEAKER_00: Can you claim that although I'm illegal, I'm domiciled and therefore subject to the complete jurisdiction of the United States?
• 47:44
  SPEAKER_02: Aaron Ross Powell No, because it's temporary just because like you know our officers are backed up or we have someone stupid who's the president, like that doesn't mean that it's not still illegal.
• 47:54
  SPEAKER_02: It's still illegal and temporary because you should be deported.
• 47:57
  SPEAKER_00: Trevor Burrus, Jr.: Well, you would make a great lawyer for the Solicitor General's office.
• 48:00
  SPEAKER_00: Thank you if you wanted uh to argue the case.
• 48:02
  SPEAKER_00: So the the argument on the other side, of course, is that, well, under the historical law of domicile, the only requirement for domicile is that you have a permanent place of abode and you have an intent to remain there.
• 48:14
  SPEAKER_00: So from the perspective of the illegal alien, they can say, well, I have a permanent abode in El Paso, California, New York, wherever it is that I am, and I my intent is to remain there.
• 48:26
  SPEAKER_00: And the government argues, well, you can't unilaterally establish an intent to remain if the laws prohibit you from doing from remaining.
• 48:34
  SPEAKER_01: Yeah.
• 48:35
  SPEAKER_00: And there there is no American authority for this proposition.
• 48:38
  SPEAKER_00: There's no English authority for this proposition.
• 48:40
  SPEAKER_00: Why?
• 48:41
  SPEAKER_00: Well, because there were no immigration restrictions historically, right?
• 48:44
  SPEAKER_00: Historically, domicile only required intent and permanent abode because the laws allowed you right to come.
• 48:49
  SPEAKER_00: And so there really isn't any law on the question of, okay, once we have immigration restrictions, can you unilaterally establish a domicile despite a prohibition on your entry?
• 48:59
  SPEAKER_00: Now, there aren't American sources on this, there aren't English sources, but there is some source of law out there.
• 49:05
  SPEAKER_00: It's not quite the code of Justinian.
• 49:08
  SPEAKER_00: I mentioned this on our live taping for those who are at Arizona State or listened to our live taping.
• 49:12
  SPEAKER_00: But the digest from 530 AD or so.
• 49:16
  SPEAKER_00: Wow.
• 49:17
  SPEAKER_00: Uh which was a collection of judicial interpretations on Roman law, on the Code of Justinian and Roman law as it predated it.
• 49:24
  SPEAKER_00: And they addressed this question.
• 49:25
  SPEAKER_00: And they said domicile, although ordinarily is simply intent plus permanent abode, uh, you cannot unilaterally establish a domicile if the sovereign prohibits your presence and so, or prohibits your entry.
• 49:37
  SPEAKER_00: And so the Roman jurists thought, hey, actually, you can't uh you can't unilaterally establish this domicile.
• 49:43
  SPEAKER_00: So is Roman law binding?
• 49:44
  SPEAKER_02: Yeah, well, why why why do I why do I do why do we care about Roman law?
• 49:47
  SPEAKER_00: Well, do we care?
• 49:49
  SPEAKER_00: Well, because it indicates how intelligent uh legal thinkers thought about this problem um in a it w when it came up.
• 49:57
  SPEAKER_00: And uh it is persuasive authority.
• 49:59
  SPEAKER_00: It's not binding.
• 50:00
  SPEAKER_00: Roman law is not law in the sense that the constitution is law, uh, but certainly um it's uh informative of how smart jurists over history have thought about a particular problem.
• 50:11
  SPEAKER_00: And I don't know, like wouldn't that move you as a as a judge a little bit?
• 50:15
  SPEAKER_00: I mean, I think it'd move Adrian Vermule, and I know you're a fan of Adrian Vermule's common good constitutionalism.
• 50:20
  SPEAKER_02: Um it didn't move me a little.
• 50:23
  SPEAKER_02: I I guess I guess it's just hard when the circumstances are so different.
• 50:26
  SPEAKER_02: Like I think that's one of the things I struggle with um originalism, which we'll get to, is like I I do believe that that's probably the best reading of the Constitution, but at the same time, our circumstances are just so different.
• 50:36
  SPEAKER_02: Like when you think about what we've seen with illegal immigration in our country.
• 50:40
  SPEAKER_02: Could our founders, could the you know, people who wrote these the citizenship amendment later on, could they have imagined what we're going through now with people rushing the border with China?
• 50:49
  SPEAKER_02: I mean, tell them about Saipan.
• 50:51
  SPEAKER_02: Are they really gonna be like, oh yeah, that just sucks.
• 50:53
  SPEAKER_02: Like that's just a consequence of what we came up with.
• 50:56
  SPEAKER_02: I don't know if they will.
• 50:56
  SPEAKER_02: I think they would say, wait, that's crazy.
• 50:58
  SPEAKER_02: Like you can't let that happen.
• 50:59
  SPEAKER_00: Aaron Ross Powell So I just want the record to reflect that we have come full circle from our first episode where Catherine accused me of being a living constitutionalist.
• 51:08
  SPEAKER_00: And now she's basically if not quite a living constitutionalist, a common good constitutionalist, which we'll talk a little bit later about Adrian Vermule and his essay on birthright.
• 51:18
  SPEAKER_00: I have questions.
• 51:18
  SPEAKER_02: I'm kind of just asking questions.
• 51:20
  SPEAKER_00: Okay, fair enough.
• 51:21
  SPEAKER_00: I was just asking questions on that first episode.
• 51:23
  SPEAKER_00: Uh but it's certainly interesting that like at least if the the statute is ambiguous on this question, uh you know, can you consider modern-day consequences of which the framers of the amendment could not possibly have foreseen, right?
• 51:37
  SPEAKER_00: And so that that is a question.
• 51:38
  SPEAKER_00: Um but okay, before we get to Adrian Vermule, because we want to we want to give his new digest piece, uh, which is his Substack, which you should all follow, as well as follow our Substack.
• 51:47
  SPEAKER_00: Again, rashlybased.substack.com.
• 51:50
  SPEAKER_00: Adrian's is new digest.substack.com, I believe, but you can certainly search uh the new digest.
• 51:54
  SPEAKER_00: Before we get into that, like I do think it's worth showing our audience like the robust evidence uh for the government's view that there was a lot of contemporaneous evidence that contemporaneous observers thought temporary visitors were excluded.
• 52:08
  SPEAKER_00: And so uh maybe we'll throw this up on the YouTube um for uh those who are watching us on YouTube.
• 52:14
  SPEAKER_00: But so in 1885, this is all from the government's brief, uh Secretary of State Frederick Froylinghausen.
• 52:22
  SPEAKER_00: You were wondering how to pronounce that right.
• 52:23
  SPEAKER_00: Yes.
• 52:24
  SPEAKER_00: Um I've heard that at some point.
• 52:25
  SPEAKER_00: Um I actually, uh when I was a law firm lawyer, one of the partners at the firm I was working at was it was a Froilinghausen.
• 52:31
  SPEAKER_00: So it was part of the family.
• 52:33
  SPEAKER_00: Um very big uh family from I think historically New Jersey and thereabouts.
• 52:37
  SPEAKER_02: Um, that's even worse than Hinderrocker, my maiden name.
• 52:40
  SPEAKER_02: That was a mouthful.
• 52:41
  SPEAKER_02: Froilinghausen that that's got it beaten.
• 52:43
  SPEAKER_00: Um so to see how it's spelled, you have to watch us on uh YouTube.
• 52:46
  SPEAKER_00: Anyway, he basically denied citizenship to a uh German who was born in the United States, to German parents, but who were only here temporarily.
• 52:55
  SPEAKER_00: This was after the 14th Amendment.
• 52:56
  SPEAKER_00: Basically, what were they trying to do, by the way?
• 52:58
  SPEAKER_00: What were the German citizens why was this German ch person trying to claim U.S.
• 53:01
  SPEAKER_00: citizenship?
• 53:02
  SPEAKER_00: Because there was war in Europe.
• 53:03
  SPEAKER_00: There were the wars of German unification, and they didn't want to be conscripted into the German wars.
• 53:08
  SPEAKER_00: And so they said, Well, I'm a U.S.
• 53:09
  SPEAKER_00: citizen, because I was born there when my parents were temporarily there for six weeks.
• 53:13
  SPEAKER_00: Right?
• 53:13
  SPEAKER_00: And and the Secretary of State Froulinghausen said, no.
• 53:16
  SPEAKER_00: No, we are not absolving you of your obligations to your the country of your parents' citizenship.
• 53:21
  SPEAKER_00: And Froulinghausen basically said, you are you are not subject to the jurisdiction of the United States in the relevant sense.
• 53:26
  SPEAKER_00: Or in the Civil Rights Act, you are not um you remain subject to a foreign power within the meaning of the Civil Rights Act.
• 53:33
  SPEAKER_00: Is that Civil Rights Act different than the Fourteenth Amendment?
• 53:35
  SPEAKER_00: Well, they reenacted the Civil Rights Act with the language not subject to any foreign power after the 14th Amendment.
• 53:40
  SPEAKER_00: So Froulinghausen seemed to have treated it interchangeably.
• 53:43
  SPEAKER_00: There's another Secretary of State, uh Secretary Baird, who similarly denied citizenship uh to a uh a child born, somebody born in the United States many years earlier to parents who are temporarily visiting there.
• 53:55
  SPEAKER_00: So you also had Secretary of State Everts, um, who I don't remember if the government's brief talks about, but you had a lot of executive branch practice denying citizenship to people born in the United States of temporary visitors.
• 54:05
  SPEAKER_00: And of course, then so we'll put that up for the listeners.
• 54:08
  SPEAKER_02: That seems like a big deal, though.
• 54:09
  SPEAKER_02: I mean, like that's that that just proved that proves their argument in a way.
• 54:14
  SPEAKER_02: I mean, that seems like a big deal.
• 54:15
  SPEAKER_02: That I I that did this hold like that this was correct?
• 54:19
  SPEAKER_00: Well, so there's a question.
• 54:21
  SPEAKER_00: So some people say uh and there is contrary evidence.
• 54:24
  SPEAKER_00: Uh and some people say Wankamark um held that all this was wrong, but that's not true.
• 54:29
  SPEAKER_00: I've just showed you that Wankamark was about domiciled, lawful permanent residents.
• 54:33
  SPEAKER_00: It wasn't about temporary visitors.
• 54:34
  SPEAKER_00: So actually, I don't know that this had ever been overturned.
• 54:38
  SPEAKER_00: This idea that temporary visitors counted really only emerged in like the 1930s and 40s, and even then it was still unclear.
• 54:46
  SPEAKER_00: Um, and so there was like a long executive branch practice uh going the other direction.
• 54:50
  SPEAKER_00: There's also, of course, all of these quotations from various treatises, which um we should put do you do should we read some of them at least to our listeners so you could understand like the degree of evidence here?
• 55:00
  SPEAKER_00: Again, these are from treatises, um, contemporaneous observers um suggesting that temporary visitors were excluded.
• 55:06
  SPEAKER_02: Aaron Powell Yeah, like mere birth within American territory does not always make the child an American citizen, such as the case with children of aliens born here while their parents are traveling or only temporarily resident.
• 55:17
  SPEAKER_00: Aaron Powell So that's from Henry Brannon, a treatise on the rights and privileges guaranteed by the 14th Amendment.
• 55:21
  SPEAKER_00: This was 1901.
• 55:22
  SPEAKER_02: It's pretty straightforward.
• 55:23
  SPEAKER_00: If you go up to in 1898, in this country, the alien must be permanently domiciled, while in Great Britain, birth during mere temporary sojourn is sufficient.
• 55:31
  SPEAKER_00: So saying again, under the Fourteenth Amendment, you had to be domiciled.
• 55:35
  SPEAKER_00: So that was uh an article in the Yale Law Journal in 1898.
• 55:39
  SPEAKER_00: Um so you keep going back.
• 55:41
  SPEAKER_00: I mean, you have Francis Wharton, uh, you have um so for example, the this is actually Alexander Porter Morse, who we're gonna have to talk about because he was apparently a racist, so you're not allowed to talk about him.
• 55:52
  SPEAKER_00: But he said the words subject to the jurisdiction thereof exclude the children of foreigners transiently within the United States.
• 55:59
  SPEAKER_00: Um Samuel Miller, a Supreme Court justice.
• 56:03
  SPEAKER_00: Supreme Court Justice Samuel Miller.
• 56:04
  SPEAKER_00: If a stranger or traveler passing through or temporarily residing in this country, who has no allegiance to our government, has a child born here, which goes out of the country with its father, such child is not a citizen of the United States because it was not subject to its jurisdiction.
• 56:19
  SPEAKER_00: So again, in and here we've got okay, one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen bullets, thirteen different paragraphs, which they offset with bullets, of temper contemporaneous observers making this point.
• 56:33
  SPEAKER_00: Right?
• 56:34
  SPEAKER_00: That's a lot of evidence.
• 56:35
  SPEAKER_00: Does it move you?
• 56:36
  SPEAKER_00: Are you persuaded?
• 56:37
  SPEAKER_02: Aaron Powell, I'm kind of persuaded, although I suppose like to be fair, I should probably look at the evidence on the other side.
• 56:41
  SPEAKER_02: I mean, now that I've seen this, I'm like, wow.
• 56:42
  SPEAKER_00: How based of you?
• 56:43
  SPEAKER_00: Look at the other side's evidence?
• 56:45
  SPEAKER_00: Let's reconstruct the best argument on the other side.
• 56:47
  SPEAKER_00: I know.
• 56:48
  SPEAKER_02: But this is I mean, this is uh this seems to if you look at just this, it seems like it's settled.
• 56:53
  SPEAKER_02: Science is settled.
• 56:53
  SPEAKER_00: Aaron Powell, so what is the best argument on the other side?
• 56:55
  SPEAKER_00: That they were all racists?
• 56:56
  SPEAKER_02: Aaron Ross Powell Well, that's one of the arguments, apparently, which I found very funny, which you know I laughed when you when you said that earlier, because someone you posted these examples on X and you said the government's birthright brief has been filed, and this seems like the most impressive part.
• 57:09
  SPEAKER_02: And basically someone accused you of being a racist because you cited a racist person somewhere in here?
• 57:15
  SPEAKER_00: Aaron Ross Powell Yes, my frenemy.
• 57:17
  SPEAKER_00: Uh though we might have migrated into enemy territory.
• 57:20
  SPEAKER_00: Though I'm not sure just yet.
• 57:21
  SPEAKER_00: Um I'll call my frenemy, Anthony Michael Kreis, who if you follow me on X, you know that I'm constantly in public fights with uh uh this professor who uh teaches at Georgia State.
• 57:32
  SPEAKER_00: And he says, why should we care about Alexander Porter Morse?
• 57:36
  SPEAKER_00: He was a Confederate veteran who supported Samuel Tillman and the end of Reconstruction, but also argued against equality in Plessy v.
• 57:44
  SPEAKER_00: Ferguson, right?
• 57:45
  SPEAKER_00: So he Alexander Porter Morse, who again says temporary visitors were excluded from birthright citizenship, also thought separate but equal was constitutional and argued for it.
• 57:54
  SPEAKER_00: And so he's a racist, and therefore I'm not allowed to sign him.
• 57:57
  SPEAKER_02: Aaron Powell That's kind of an interesting thought.
• 57:59
  SPEAKER_02: It does not move me, but it is like, you know, if someone has a belief that is so kind of wrong and and out of the out of what we believe to be the norm today, does it invalidate everything else they ever said?
• 58:12
  SPEAKER_02: I don't think so, but I guess you could argue that.
• 58:15
  SPEAKER_00: Aaron Powell Yeah, so this is a really profound question, actually.
• 58:18
  SPEAKER_00: And I think you the question it might depend on the closeness of the connection between the particular views that we find abhorrent and the particular argument that they're making.
• 58:30
  SPEAKER_00: So the fact that George Washington happened to have slaves, that should not color all of his other incredible accomplishments as commander-in-chief in the American Revolution, as the first president.
• 58:40
  SPEAKER_00: We shouldn't just throw everything Washington did out the window because he happened to own slaves.
• 58:44
  SPEAKER_00: Chief Justice Tony decided the infamous Dred Scott decision.
• 58:47
  SPEAKER_00: Does that mean we should ignore his rulings on patent law and IP law?
• 58:51
  SPEAKER_00: No, because there isn't this closeness of a connection.
• 58:53
  SPEAKER_00: Here, though, to be fair to my frenemy, Anthony Michael Christ, it's true that if you are a racist, then you have an incentive to have a narrow view of the 14th Amendment.
• 59:05
  SPEAKER_00: Right?
• 59:06
  SPEAKER_00: And so they're motivated and incentivized to have a particular point of view.
• 59:10
  SPEAKER_00: But I would say a few things to this.
• 59:12
  SPEAKER_00: The first is, uh, does Anthony Michael Christ not have political predispositions and biases and motivations that make him believe in certain things?
• 59:20
  SPEAKER_00: I also have certain biases and predispositions, political or otherwise, that makes me predisposed and inclined to want certain things to be true.
• 59:28
  SPEAKER_00: But that's true of anybody and of any discipline.
• 59:31
  SPEAKER_00: And so I think the best you can do is openly state, here are my biases, and I'm trying to overcome them, and I will let my reader or I will let my listener be the judge of whether I've actually successfully overcome uh that bias.
• 59:44
  SPEAKER_00: And so here, like, yeah, maybe um he was uh uh racist, but there are 13 bullet points.
• 59:51
  SPEAKER_00: So maybe two or three of them were racist, right?
• 59:53
  SPEAKER_00: Does that mean that the other 10 are also invalid?
• 59:56
  SPEAKER_02: Well, well, where are these from?
• 59:57
  SPEAKER_02: Probably a lot of them were racist.
• 59:59
  SPEAKER_02: I mean, i that's the other thing.
• 1:00:00
  SPEAKER_02: If you look back at everyone in history, there are lots of problematic things you can find.
• 1:00:05
  SPEAKER_02: And if you go forward 100 years from now, maybe they'll look back at this podcast and think we were insane and problematic.
• 1:00:11
  SPEAKER_02: I mean, we don't know.
• 1:00:12
  SPEAKER_02: So I think that's a little bit silly, but at the same time, maybe you can take that one out of thirteen and say, well, maybe I discounted slightly.
• 1:00:19
  SPEAKER_02: And maybe that's fair.
• 1:00:20
  SPEAKER_00: I was asked last night by a Washington Post reporter um for a comment on uh because they're doing a story on this brief written, amicus brief written.
• 1:00:27
  SPEAKER_02: I honestly did think they were all fired.
• 1:00:29
  SPEAKER_02: I'm interested to hear that there's some that are still employed.
• 1:00:31
  SPEAKER_02: Aaron Ross Powell, Jr.
• 1:00:31
  SPEAKER_00: Yeah, there is at least one.
• 1:00:32
  SPEAKER_00: And he's writing a story about the upcoming oral argument, and he wanted my comment on this brief that basically said Alexander Porter Morse, and he cited two others these were racist, anti-Chinese racists, the the Solicitor General is adopting a racist argument, and the court should reject this racist argument.
• 1:00:47
  SPEAKER_00: And he asked me for my comment.
• 1:00:49
  SPEAKER_00: And I said, basically, well, were the other ten racist?
• 1:00:53
  SPEAKER_00: Were uh Bingham was Bingham racist?
• 1:00:56
  SPEAKER_00: Was Lyman Trumbull racist?
• 1:00:57
  SPEAKER_00: Was James Wilson racist?
• 1:00:58
  SPEAKER_00: These are some of the leading drafters of the 14th Amendment who and the Civil Rights Act who suggested that domicile was a requirement, perhaps, uh, for birthright citizenship.
• 1:01:06
  SPEAKER_00: Were they all racist?
• 1:01:08
  SPEAKER_00: This idea that you know two or three people uh who happen to be racist also adopt a particular argument that lots of other people also adopt, that somehow that colors you know the argument uh that somehow they're all there for using a racist argument because three people also use the argument and happen to be racist is an insane logical leap and logical fallacies.
• 1:01:28
  SPEAKER_00: So I reject it.
• 1:01:29
  SPEAKER_00: And one other point about this, by the way, the separate but equal Plessy v.
• 1:01:32
  SPEAKER_00: Ferguson.
• 1:01:33
  SPEAKER_00: This this argument that my friend and colleague and friend of me to say, Anthony Michael Christ, makes like, well, Alexander Porter Morse argued in favor of Ferguson and Plessy v.
• 1:01:42
  SPEAKER_00: Ferguson.
• 1:01:43
  SPEAKER_00: He argued in favor of separate but equal.
• 1:01:44
  SPEAKER_00: So we should ignore everything he said.
• 1:01:47
  SPEAKER_00: You know who else argued in favor of separate but equal?
• 1:01:52
  SPEAKER_00: Who?
• 1:01:53
  SPEAKER_00: The entire majority of the Wonke Mark decision?
• 1:01:57
  SPEAKER_02: No way, seriously?
• 1:01:58
  SPEAKER_00: Well, okay, all but one.
• 1:01:59
  SPEAKER_00: Um but all but one in the majority in Wonke Mark were the same justices in the majority in Placid V.
• 1:02:05
  SPEAKER_00: Ferguson.
• 1:02:06
  SPEAKER_00: So if I can't cite Alexander Porter Morse because he was a racist and supported separate but equal, then you, my friend, cannot cite Wonke Mark because they were all inveterate racists, uh, because they supported separate.
• 1:02:19
  SPEAKER_00: So in other words, two can play this game.
• 1:02:22
  SPEAKER_00: All right?
• 1:02:23
  SPEAKER_02: They could play this game for hours.
• 1:02:24
  SPEAKER_02: I mean, come on.
• 1:02:25
  SPEAKER_02: You could go back and forth finding everything problematic that they did in their lives over and over in history.
• 1:02:30
  SPEAKER_02: I'm sure they also did some things correct.
• 1:02:32
  SPEAKER_02: Like, I mean, it's just absurd, I think.
• 1:02:34
  SPEAKER_00: And for our uh listeners, we will put up this tweet and exchange with my friend of me.
• 1:02:38
  SPEAKER_00: Uh and again, as you know, some of these quotes uh on on YouTube.
• 1:02:41
  SPEAKER_00: So that's uh that that was a lot of fun uh to engage with him uh on that.
• 1:02:45
  SPEAKER_00: But so yeah, so much for the government's brief.
• 1:02:47
  SPEAKER_00: Um can I ask you, oh, anything else you want to say about the government's argument, or can I ask you about some of the amicus briefs?
• 1:02:52
  SPEAKER_02: No, let's move on to the amicus briefs.
• 1:02:54
  SPEAKER_00: So you particularly liked, it seems like the national security brief.
• 1:02:58
  SPEAKER_00: I mean, this relates to the birth tourism and the Peter Schweitzer stuff that we talked about earlier.
• 1:03:01
  SPEAKER_00: But an amicus brief on the side of the Trump administration was written by a national security official.
• 1:03:06
  SPEAKER_00: Um, and that seemed to move you.
• 1:03:08
  SPEAKER_02: Yeah, Joshua Steinman is his name.
• 1:03:10
  SPEAKER_02: He wrote this brief um that I thought was very interesting.
• 1:03:12
  SPEAKER_02: He basically argues that the court should consider national security as a factor when coming to their conclusion about birthright, and that we've done this in the past.
• 1:03:20
  SPEAKER_02: Actually, national security has been brought into the conversation when we're trying to solve these kind of constitutional issues and wouldn't be a new thing.
• 1:03:28
  SPEAKER_02: And he just makes the point that we have to take into account that things like the Chinese Communist Party are using our laws to further their political gains.
• 1:03:40
  SPEAKER_02: And it could be at our loss.
• 1:03:44
  SPEAKER_02: So I I just thought that was very interesting and and something to consider when it we talk about Saipan and the CCP.
• 1:03:51
  SPEAKER_02: Obviously, we should take these things into consideration, don't you think?
• 1:03:54
  SPEAKER_02: Aaron Ross Powell, Jr.
• 1:03:54
  SPEAKER_00: And have you watched The Americans, the TV series?
• 1:03:56
  SPEAKER_02: Oh, my parents loved it.
• 1:03:57
  SPEAKER_00: Yeah, with the Russian deep cover spy.
• 1:03:59
  SPEAKER_00: And so one thing that this brief says, this national security expert says in his brief, is could think about the investment it takes to fake an identity, especially today.
• 1:04:08
  SPEAKER_00: It gets harder and harder to fake an identity.
• 1:04:10
  SPEAKER_00: So that you have these deep cover Russian agents or these deep cover Chinese agents who live in the United States for years pretending to be citizens.
• 1:04:17
  SPEAKER_00: How much easier would it be if you actually had a valid and legitimate birth certificate and everybody thought you were a citizen by virtue of your birth in the United States?
• 1:04:25
  SPEAKER_00: How much easier would it be to create these deep cover uh spies?
• 1:04:29
  SPEAKER_00: And so he says it's a huge national security risk, and the Constitution should be interpreted uh sensibly to avoid national security problems.
• 1:04:36
  SPEAKER_02: And he had a lot of evidence in there that talked about you know, like I said, times in the past when um the court has done this, they've taken into account national security.
• 1:04:43
  SPEAKER_02: It seems like the framers thought that was a huge issue too.
• 1:04:45
  SPEAKER_02: They were very concerned about um national security and the kind of dual allegiance issue that we talked about earlier.
• 1:04:52
  SPEAKER_02: And so I I don't know, I think that seems obvious.
• 1:04:54
  SPEAKER_02: We should at least factor that in.
• 1:04:55
  SPEAKER_02: I thought that was a good a good point on his part.
• 1:04:58
  SPEAKER_00: So that was a brief on the Trump administration's side.
• 1:05:01
  SPEAKER_00: There's one brief we wanted to talk about on the other side, the against the Trump administration side, on the pro-Barbera uh side, and that's Akilah Maher's brief.
• 1:05:09
  SPEAKER_00: Akilah Marr is a professor at Yale, very, very famous.
• 1:05:12
  SPEAKER_00: I will just put all my cards on the table.
• 1:05:14
  SPEAKER_00: Akilah and I have a slightly rough relationship with some beef.
• 1:05:18
  SPEAKER_00: We uh yeah, we've we've publicly tangled before about various things.
• 1:05:22
  SPEAKER_00: Um but he's a very famous scholar, and his view needs to be taken seriously.
• 1:05:25
  SPEAKER_00: But I just, you know, because he's writing about his amicus brief a lot on SCOTUS blog, and he's got like multiple series about this.
• 1:05:31
  SPEAKER_00: He also has his own podcast, America's Constitution.
• 1:05:34
  SPEAKER_00: That's actually pretty clever.
• 1:05:35
  SPEAKER_00: America, America, oh that's good.
• 1:05:38
  SPEAKER_02: Um SCOTUS Blog, is that like a legitimate source?
• 1:05:40
  SPEAKER_02: That's my question, too.
• 1:05:41
  SPEAKER_02: I see that a lot.
• 1:05:42
  SPEAKER_00: Well, yeah, the the they are now I mean, the founder of Scotus Blog was just indicted for tax fraud, right?
• 1:05:48
  SPEAKER_00: So that's an issue.
• 1:05:50
  SPEAKER_00: But but it has long since been bought out by the dispatch, um, which is I think Jonah Goldberg's Oh god, so it's a terrible source.
• 1:05:56
  SPEAKER_00: Well, okay, if you I'll let you say say that, but uh they actually Actually, just bought up all these podcasts are our competitors.
• 1:06:03
  SPEAKER_00: So they they are our competitors.
• 1:06:05
  SPEAKER_00: Because the dispatch bought up SCOTUS blog, and SCOTUS blog now runs advisory opinions, divided argument, and a Marcus Constitution.
• 1:06:12
  SPEAKER_00: So um they are a behemoth, they are a competitor, but we are excited to uh compete with them.
• 1:06:16
  SPEAKER_00: But he's got all of these articles on SCOTUS blog.
• 1:06:20
  SPEAKER_00: Um and uh his claim is basically he thinks he's just like solved this puzzle and that like if the justices only read his brief, everything would be solved.
• 1:06:28
  SPEAKER_00: And his claim is basically like some people said at the time, well, if you're born under the flag.
• 1:06:34
  SPEAKER_00: So if you're born on American soil, and as he literally says this in his brief, and you look above and there's a flag flying overhead, an American flag, then you're a citizen.
• 1:06:42
  SPEAKER_00: And he says this as if it's like solves this problem.
• 1:06:45
  SPEAKER_00: But actually it obscures everything.
• 1:06:47
  SPEAKER_00: It doesn't solve any problems whatsoever.
• 1:06:49
  SPEAKER_00: So what about ambassadors?
• 1:06:51
  SPEAKER_00: So he says ambassadors were excluded.
• 1:06:54
  SPEAKER_00: Okay, if an ambassador's wife has a child in an American hospital and you look overhead and there's a flag, American flag, on that American hospital, is that child an American citizen?
• 1:07:03
  SPEAKER_01: No.
• 1:07:04
  SPEAKER_00: Well he said he agrees it's not an American citizen.
• 1:07:06
  SPEAKER_00: So so what work does it do to say under the flag?
• 1:07:08
  SPEAKER_00: Oh well, they are held to be under foreign territory.
• 1:07:11
  SPEAKER_00: There's this fiction of extraterritoriality.
• 1:07:13
  SPEAKER_00: Okay, so the flag isn't actually doing the work.
• 1:07:16
  SPEAKER_00: We have a fiction.
• 1:07:17
  SPEAKER_00: Why do we have the fiction?
• 1:07:18
  SPEAKER_00: Oh, because the parent is an ambassador.
• 1:07:20
  SPEAKER_00: So what you're actually saying is the parent's status still matters.
• 1:07:23
  SPEAKER_00: What do you do about Indian country?
• 1:07:26
  SPEAKER_00: Indian territory was sought to be within the United States.
• 1:07:29
  SPEAKER_00: So if you're born in Indian country and you look above, is there an American flag overhead?
• 1:07:33
  SPEAKER_00: It's American territory.
• 1:07:35
  SPEAKER_00: Well, the answer is no.
• 1:07:36
  SPEAKER_00: Why?
• 1:07:36
  SPEAKER_00: Because the tribes are an independent political community.
• 1:07:39
  SPEAKER_00: So again, the point is this under the flag doesn't actually solve any of the problems.
• 1:07:42
  SPEAKER_02: No, it sounds just kind of like a bad metaphor, in my opinion.
• 1:07:45
  SPEAKER_00: It's a bad metaphor that doesn't solve any of the problems.
• 1:07:47
  SPEAKER_00: What about occupied territory?
• 1:07:49
  SPEAKER_00: If you have invaders, okay, who occupy your territory and you look above, is there an American flag?
• 1:07:54
  SPEAKER_00: Or no, because it's they hoist their flag, because it's a the foreign army.
• 1:07:59
  SPEAKER_02: I would assume they would hoist their flag.
• 1:08:00
  SPEAKER_00: Think of the Red Red Dawn.
• 1:08:01
  SPEAKER_00: Have you seen Red Dawn?
• 1:08:02
  SPEAKER_00: No.
• 1:08:03
  SPEAKER_00: Oh, come on.
• 1:08:03
  SPEAKER_00: From the 1980s, the original.
• 1:08:04
  SPEAKER_00: Yeah, I don't want movies.
• 1:08:05
  SPEAKER_00: What a great movie.
• 1:08:06
  SPEAKER_00: Red Dawn.
• 1:08:07
  SPEAKER_00: Okay, we should.
• 1:08:08
  SPEAKER_00: Well, you gotta watch Red Dawn.
• 1:08:09
  SPEAKER_00: It is it is a classic.
• 1:08:10
  SPEAKER_00: So the Cubans parachute into the Iowa and you know the heartland.
• 1:08:14
  SPEAKER_00: To Iowa?
• 1:08:14
  SPEAKER_00: Well, I don't know.
• 1:08:15
  SPEAKER_00: They I don't know how they got there, but it's like inland America, right?
• 1:08:17
  SPEAKER_00: That's a long parachute.
• 1:08:18
  SPEAKER_00: And then these kids start this you know re rebel rebel group to fight you know guerrilla warfare against the Cubans um and the Russians and the Soviets that have like occupied um like the Trevor Burrus, okay, so not based on a true story.
• 1:08:29
  SPEAKER_00: No, no, but you know, inspiring, uh Cold War inspiring.
• 1:08:32
  SPEAKER_00: Okay, so so is there an American flag or a Cuban flag in that situation?
• 1:08:36
  SPEAKER_00: And so if it's a Cuban flag and an American, the loyal Americans have a child, are they not birthright citizens?
• 1:08:42
  SPEAKER_00: Again, Akilomar's view of under the flag doesn't do the relevant work.
• 1:08:46
  SPEAKER_00: I mean, if you look at how under the flag was used as a metaphor, people said a child born of an ambassador is born under a foreign flag.
• 1:08:54
  SPEAKER_00: So again, it's not literally a physical flag.
• 1:08:56
  SPEAKER_00: Something else is doing the work, the status of the parents, their allegiance, from whom they draw protection.
• 1:09:01
  SPEAKER_00: So again, under the flag doesn't solve anything.
• 1:09:03
  SPEAKER_00: It just gets us right back to square one.
• 1:09:05
  SPEAKER_00: And so I just wanted to um mention that because again, he's he's really playing up this argument, and I just don't think it does uh the necessary work with all due respect uh to Akeel.
• 1:09:15
  SPEAKER_00: Okay, that was my uh uh amicus discussion.
• 1:09:18
  SPEAKER_00: I just wanted to get that off my chest as well.
• 1:09:22
  SPEAKER_00: Last topic.
• 1:09:23
  SPEAKER_00: Common good constitutionalism, originalism.
• 1:09:26
  SPEAKER_00: Does any of this actually matter?
• 1:09:28
  SPEAKER_02: Okay, this is what I have a hard time with, because I think we we talk about this this issue, and there's a lot of very deep legal issues and semantic arguments over the meaning of the word domiciled or whatever.
• 1:09:39
  SPEAKER_02: Uh isn't it just common sense that we should be able to say who is a citizen of our country?
• 1:09:46
  SPEAKER_02: Isn't it just kind of like duh?
• 1:09:48
  SPEAKER_02: It shouldn't just be anyone who wants to the Saipan thing is freaking absurd.
• 1:09:52
  SPEAKER_02: Like they are not American citizens.
• 1:09:54
  SPEAKER_02: Like I don't care what the documents say, you can't just fly into Saipan, pop out a baby, and now you have an American citizen.
• 1:10:01
  SPEAKER_02: That's absurd.
• 1:10:03
  SPEAKER_02: And it's like we have all these arguments that seem to act as if it's not absurd, and I hate that.
• 1:10:07
  SPEAKER_00: Aaron Powell Well, and now parachutes into the debates.
• 1:10:10
  SPEAKER_00: Adrian Vermule, professor at Harvard, the most based constitutional law professor probably of all time.
• 1:10:15
  SPEAKER_00: Uh your new favorite law professor.
• 1:10:17
  SPEAKER_00: Yes.
• 1:10:17
  SPEAKER_00: Um I think I am second to Adrian, actually, in your admiration uh here what you're talking about.
• 1:10:21
  SPEAKER_02: Well, he he cited you here in his in his substack, which I thought, you know, big big props to you.
• 1:10:26
  SPEAKER_00: Aaron Powell So he has a substack that you should all follow, the new digest.
• 1:10:28
  SPEAKER_00: But Adrian Vermule basically argues uh he wrote this book about common good constitutionalism, about how originalism isn't sufficient, about how part of our law, as part of our law, there are these general principles of jurisprudence, uh, and where do those come from?
• 1:10:41
  SPEAKER_00: Well, time immemorial, customary practice, Roman law, right?
• 1:10:45
  SPEAKER_00: I mean, the natural law, Aquinas, you can cite many different sources to help you understand what the general rule of legal right is in a particular case.
• 1:10:53
  SPEAKER_00: And so he says this originalism stuff is like, who cares in this birthright citizenship?
• 1:10:57
  SPEAKER_00: But but really even his argument depends a bit on originalism.
• 1:11:00
  SPEAKER_00: And so that's kind of what I want to say.
• 1:11:01
  SPEAKER_02: Okay.
• 1:11:02
  SPEAKER_00: So in his um Substack post, again in the New Digest, he says, we bow to no one in the New Digest, right?
• 1:11:09
  SPEAKER_00: We bow to no one in our admiration for legal tradition, but that is because we believe, and the lawyers of the founding generation believe, that the tradition discerns real and enduring general principles of legal right that are of their own force, part and parcel of American law.
• 1:11:21
  SPEAKER_00: Originalists like me, Elon Warman, uh, who very much do not believe that, actually, I don't know that I don't believe it exactly.
• 1:11:28
  SPEAKER_00: I just don't know how it consists it is with originalism.
• 1:11:30
  SPEAKER_00: Okay, I'll go on, sorry.
• 1:11:31
  SPEAKER_00: Might do well to pause, take a step back, and ask themselves what exactly are the boundaries and constraints on their increasingly promiscuous methods.
• 1:11:38
  SPEAKER_00: Oh, fighting words, Adrian, fighting words.
• 1:11:41
  SPEAKER_00: You still need to come on our show, by the way.
• 1:11:42
  SPEAKER_00: Anyway, so he goes on to say this is especially so because those methods do not seem to be producing anything but more debate, as shown by the roiling controversies over birthright citizenship among originalist academics.
• 1:11:53
  SPEAKER_00: It sometimes seems that for any given number of originalists there are at least as many distinct and conflicting opinions.
• 1:11:57
  SPEAKER_00: We see eminent and orthodox original scholars such as Professor Werbin, Professor Lash, okay, so I'm eminent, okay, just to be uh clear.
• 1:12:05
  SPEAKER_00: And others on the other side, also uh with distinct views in their own camps, but on the other side we have Whittington and Ramsey, right, who so originalists basically don't agree about this.
• 1:12:14
  SPEAKER_02: Aaron Powell But yeah, these people are all originalists, right?
• 1:12:16
  SPEAKER_02: So it's like his point is that originalism is not solving any problems here.
• 1:12:21
  SPEAKER_02: So how useful is it?
• 1:12:22
  SPEAKER_00: Aaron Ross Powell Exactly.
• 1:12:23
  SPEAKER_00: That's his view.
• 1:12:24
  SPEAKER_00: And he's and he says we can draw from general principles of jurisprudence to answer this question, right?
• 1:12:30
  SPEAKER_00: He says on citizenship, the most fundamental question in a republic, originalism has faced a great test, and it really hasn't answered the question.
• 1:12:37
  SPEAKER_00: And so he says, I hope the court will lift its eyes from originalist minutiae to consider the rich body of juristic reflections on the real nature of constitutional republics.
• 1:12:46
  SPEAKER_00: And what he basically argues is under Montesquieu's vision of the nature of a constitutional republic, citizenship has to be very carefully defined and very carefully controlled.
• 1:12:56
  SPEAKER_00: Why?
• 1:12:56
  SPEAKER_00: Because republics, Montesquieu argued, only are successful in small territory.
• 1:13:01
  SPEAKER_00: Because you need generally homogeneous opinions, generally homogeneous passion, a generally homogeneous culture.
• 1:13:08
  SPEAKER_00: Because otherwise, in a large republic where there is not this homogeneity of interests, you're going to have factions, you're going to have infighting, you're going to have ambitious people trying to take over.
• 1:13:17
  SPEAKER_00: And Republican government really can't succeed if there isn't this homogenous baseline of the fact that we're going to be able to do that.
• 1:13:22
  SPEAKER_00: Shared values in some sort.
• 1:13:29
  SPEAKER_00: He also argues from a principle of Roman law that one should not benefit from his own wrong.
• 1:13:34
  SPEAKER_00: And so it would be perverse to allow people who come illegally and break our laws to have their children claim the benefit of citizenship.
• 1:13:41
  SPEAKER_02: Well, yeah, sure.
• 1:13:42
  SPEAKER_02: You don't want to incentivize the wrongdoing.
• 1:13:43
  SPEAKER_00: Trevor Burrus, Jr.
• 1:13:44
  SPEAKER_00: Exactly.
• 1:13:44
  SPEAKER_00: It's the argument you made, actually, uh earlier in this podcast.
• 1:13:48
  SPEAKER_00: So let me just say that Adrian's view is well taken, but it is not entirely inconsistent with originalism, because even in his post, he acknowledged he seems to acknowledge, and Adrian, please correct me if I'm wrong, okay?
• 1:14:00
  SPEAKER_00: And come onto our show and correct me there on our show.
• 1:14:03
  SPEAKER_00: He seems to say if the Fourteenth Amendment unmistakably required birthright citizens for the children born of illegal aliens or temporary visitors, then that's it.
• 1:14:12
  SPEAKER_00: Even he seems to recognize that unmistakable positive law can bind judges, even if it's contrary to the general principles of jurisprudence that he likes.
• 1:14:20
  SPEAKER_00: But he says subject to the jurisdiction in the 14th Amendment is ambiguous.
• 1:14:24
  SPEAKER_00: It's unclear.
• 1:14:24
  SPEAKER_00: And that's what allows Adrian to then pour into the analysis these general Montesquieuan principles about the nature of republics and this history of the Roman law and the maxim that you shouldn't benefit from your own wrong.
• 1:14:36
  SPEAKER_00: Well, why do we believe the Fourteenth Amendment is ambiguous?
• 1:14:39
  SPEAKER_00: Well, because of work from scholars like me who've said actually it is not as clear as everybody thinks, and in fact it probably means something else.
• 1:14:47
  SPEAKER_00: So Professor Vermule, I really love this post.
• 1:14:50
  SPEAKER_00: I don't know that I disagree with it that much.
• 1:14:52
  SPEAKER_00: I do think Professor Vermule tends to like suggest there's more disagreement between him and originalists than maybe there actually is.
• 1:14:59
  SPEAKER_00: But again, it's a discussion that I'm happy to have with him.
• 1:15:01
  SPEAKER_00: Trevor Burrus, Jr.
• 1:15:02
  SPEAKER_02: Because he is fundamentally saying making an originalist point, which is that if it says in the 14th Amendment that well, it's very clear if you're born here, you're a citizen, then that's how it should be, right?
• 1:15:13
  SPEAKER_02: He's not saying that that should change in some way.
• 1:15:15
  SPEAKER_00: Aaron Powell Even he recognizes that if the originalist answer is unmistakable, that that seems to bind us.
• 1:15:21
  SPEAKER_00: Because even he seems to recognize that laws enacted by people, by legislatures, by the people in 1788 are part of the law, right?
• 1:15:30
  SPEAKER_00: Even if there are other parts of the law, like natural law and immemorial custom and traditions and and so on.
• 1:15:36
  SPEAKER_00: So I think there's less disagreement, but one way or another, I think we can end perhaps on this point that Adrian is absolutely right that to the extent the statute is ambiguous, it is tribal by its consequences.
• 1:15:47
  SPEAKER_00: James Madison said this, Chief Justice John Marshall said this, it was a general view that you that if a statute or constitutional provision is ambiguous, you don't interpret it to create crazy results.
• 1:15:58
  SPEAKER_00: You interpret it sensibly.
• 1:15:59
  SPEAKER_00: And here, what's the sensible result?
• 1:16:02
  SPEAKER_02: Well, it's obviously that you can't just come here and you use our country as a birth factory for your citizens and then go live elsewhere.
• 1:16:09
  SPEAKER_02: It's not that, obviously.
• 1:16:11
  SPEAKER_00: And as he says, you know, free government, Republican government, is always precarious.
• 1:16:18
  SPEAKER_00: And for most of human history, we've not had it.
• 1:16:21
  SPEAKER_00: It requires shared, homo somewhat homogeneous values about the importance of Republican government and democratic forms of government and understandings of liberty and so on.
• 1:16:30
  SPEAKER_02: Aaron Ross Powell And you're not going to have those shared values if you grow up under communist Chinese authority for 18 years and now want to come back and participate in our republic.
• 1:16:37
  SPEAKER_00: Aaron Powell And so that's you know part of the argument, and I think it's not inconsistent with originalism.
• 1:16:42
  SPEAKER_00: So I hope we have we done okay on this deep dive?
• 1:16:44
  SPEAKER_02: I mean there's so good.
• 1:16:45
  SPEAKER_02: This was a very deep dive.
• 1:16:46
  SPEAKER_02: I think it was really informative, though.
• 1:16:48
  SPEAKER_00: Aaron Ross Powell And we went a bit longer, and so uh we apologize to our listeners.
• 1:16:52
  SPEAKER_00: We just hope you appreciated that we wanted to have everything here sort of in uh one episode.
• 1:16:57
  SPEAKER_02: Aaron Powell And in time for the April 1st oral arguments.
• 1:16:59
  SPEAKER_00: And in time for the April 1st oral argument.
• 1:17:01
  SPEAKER_00: So follow us on Substack.
• 1:17:02
  SPEAKER_00: Maybe we'll do an emergency pod after the oral argument.
• 1:17:05
  SPEAKER_00: I have to talk to our producer about that.
• 1:17:07
  SPEAKER_00: Isaac, are you okay with the emergency?
• 1:17:08
  SPEAKER_00: Okay, we'll see.
• 1:17:09
  SPEAKER_00: About the emergency pod uh on April 1 after the oral argument so we could break it down for you.
• 1:17:13
  SPEAKER_00: So that is all another way of saying, please follow us on Substack, again, rationallybase.substack.com, so we can stay in touch with you.
• 1:17:19
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• 1:17:23
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• 1:17:24
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• 1:17:27
  SPEAKER_02: And let us know if you have other questions we didn't answer here.
• 1:17:29
  SPEAKER_02: I think that's another thing we could do in an emergency pod situation is grab questions from the Substack from wherever, comment on Spotify, we'll see it, and uh let us know.
• 1:17:36
  SPEAKER_00: Yeah, and we'll post on Substack, special post for our subscriber answering these questions or on our emergency pod.
• 1:17:42
  SPEAKER_00: So we hope to see you on Substack and on our next episode.
• 1:17:45
  SPEAKER_00: Thank you.