Month: June 2010

Occasionally a state legislature will pass a law so blatantly unconstitutional that even the tamest mainstream media outlets refuse to be diplomatic and pretend otherwise. It seems like a fantastic waste of time and resources to pass such legislation but it is usually an effort, driven by well-funded interest groups, to force an issue before the U.S. Supreme Court. Most of the truly wacky anti-abortion legislation – say, an Oklahoma law that allows physicians to withhold ultrasounds from pregnant women if it reveals birth defects that may lead her to consider abortion – is a transparent attempt to goad the Supreme Court into rehashing Roe v. Wade.

So when Arizona's state legislature – and by the way, Arizona must be butter because it's on a ROLL lately – proposes legislation to forbid birthright citizenship to babies born in Arizona of illegal immigrant parents, we recognize their larger goal. That a state cannot pass a law altering Federal immigration and citizenship policy is so obvious that it requires no comment. That this law is bound to work its way into Federal court is equally obvious. I'm afraid, however, that anti-immigrant people may get exactly what they want from the Courts this time.
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American citizenship is available through three avenues: naturalization, jus soli (literally "law of the ground" or "soil"), or jus sanguinis ("law of blood"). In other words one can apply for citizenship or be born with it either by being born on U.

S. territory or being born of two American citizen parents (even if born outside of the U.S.) The Arizona law would try to redefine jus soli, which, unlike many aspects of citizenship law, rests on particularly shaky ground.

Jus soli is based on the 14th Amendment, which states that, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Like so many Constitutional provisions, there is an obvious subjective component to this language: what exactly does "subject to the jurisdiction thereof" mean? Is 'jurisdiction' being subject to the laws of the US? If so, than anyone physically present in the US meets the definition. Does 'jurisdiction' imply citizenship or legal residence?

Let's just say it would not be difficult to make that argument. Not at all.

The Court ruled on that issue in one of the most important – even if not the most well known – decisions in its history: US v. Wong Kim Ark (1898). Wong was born in California to two Chinese citizens. As an adult he was denied re-entry into the US after a visit to China because he was not a citizen by virtue of his parents' Chinese citizenship. Eventually the Court ruled in Wong's favor (following the British common law application of jus soli) stating that a child born in the U.S. of two non-citizen parents is a birthright citizen as long as the following conditions exist:

1. The parents are not born of foreign diplomats.
2. The parents are not hostile forces occupying U.S. territory by force.
3. The parents have permanent residence in the U.S.

The problem is that Wong's parents were legal residents of California, hence the decision does not tell us whether or not "subject to the jurisdiction thereof" requires residence or legal residence. "Permanent" residence does not imply legal residence, hence the decision has been interpreted to mean that anyone born on U.S. soil is an American citizen. As far as defining jus soli in the United States, this case is pretty much it. The concept of birthright citizenship rests on an interpretation of the Constitution, not the Constitution itself. The language is too vague to permit the latter. It would not be difficult to make a plausible argument that the Wong decision need not automatically apply jus soli to the children of illegal immigrants depending on what constitutes jurisdiction. To be honest, I think that's a pretty good argument.

In short, I will not be even slightly shocked if the current Court – with its four vote block of ultra-conservatives – were to offer a different interpretation of "jurisdiction" that excludes illegal residents. I am personally ambivalent about this issue. I don't lie awake at night worrying about "anchor babies" and how the imm'grunts are a-comin' to take our jobs and women. The problem of illegal immigration is caused entirely by lax enforcement (or non-enforcement) of immigration law, which in turn is a function of campaign contributions from businesses that thrive off illegal workers. So I'm willing to consider "anchor babies" an externality of the elevation of profit above all other concerns. In other words, I won't shed tears over the decision either way despite my belief that the current interpretation of "jurisdiction" is correct. For people with a stronger stake in the issue, though, the Arizona bill and the potential for this issue to reach the Supreme Court should be troubling.

A brief tale in pictures:

Please note that this has nothing to do with our current economic problems. That is why it is never discussed in the news, during elections, or by elected officials.

Our problems may be due to a lot of different things, including but not limited to:

– Outsourcing blue collar jobs
– Costly wars
– Tax cuts during costly wars
– The collapse of the dollar
– Poor monetary policy
– Lazy, entitled poor people
– Shiftless minorities
– Spanish language billboards
– Snake-handlers
– Al Worthington of Al Worthington Chevrolet in Grand Forks, ND
– Solar wind
– The death of Billy Mays
– Infrastructure destroyed by the Sasquatch, Rodan, or both
– Reckless disregard for official signage
– Jews

But not inequality. So keep moving, there's nothing to see here.

The social sciences are a great place to be a cynic. Acquire even a passing understanding of the cumulative research in political science, sociology, psychology (I know, they resist being lumped into this group), or economics and it quickly leads to the conclusion that humanity is unfit to feed and clothe itself let alone govern or live in society with one another. However low your expectations of the "average American" may be, spend a few hours with the literature of political science and sociology and recognize how generous you were being. Americans know next to nothing, believe absolute nonsense, and lack any interest in social, political, and economic issues. There is nothing more trite or true than stating, "Americans are idiots." It isn't even controversial anymore.

So the question, and a particularly problematic one for the courts, is just what we can reasonably expect Americans to understand about the law and their rights.
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Last week the Supreme Court issued a split (5-4) and controversial decision in Berghuis v. Thompkins, allegedly weakening the 5th Amendment right against self-incrimination. As is often the case with Supreme Court controversies, the reaction focuses on the decision and ignores the facts of the underlying case. Briefly, an individual was arrested and read his Miranda rights but he made no statement either invoking or waiving them. That is, he didn't say much of anything. For over 2.5 hours police asked him questions about a murder while he said nothing, and after 3 hours he made a self-incriminating statement.

Statements made after invoking the right to remain silent are inadmissible. The defendant's attorney claimed that he invoked his rights by remaining silent for nearly 3 hours. The lower courts agreed, but the 5-4 majority on the SC disagreed. The majority bloc (Clarence Thomas, Scalia, Alito, Roberts, and Kennedy) is not one that I often side with, but in this instance I see the logic of their decision, even though the implications are troubling.

The basic question is a thorny one: what can and should police assume? Now, we know that I am not a friend of American police tactics and what we mockingly call a justice system.
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But this fuels my belief that asking police to assume anything is a dangerous enterprise. On the one hand, the dissenters on the Court and liberal groups are arguing that 3 hours of silence should be interpreted as invoking the right to remain silent. On the other, the majority argued that responding to any questions should be interpreted as waiving the right.

Much of the reaction has echoed Sotomayor's dissent in arguing that:

A) The burden should be on the police to prove that the rights were waived, not on the defendant to prove that they were invoked. As the original Miranda decision states, a "heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."

B) Our rights have been weakened because police can hypothetically pepper a silent person with questions for hours until he or she finally responds. I agree with the first part, but the second only holds if we assume that Americans have not the slightest understanding of how their rights work. That might not be a bad assumption, of course.

A person need only say "I wish to remain silent" or "I don't want to say anything" and everything beyond that point becomes inadmissible in all but a few unique situations. The real question at hand here, then, is whether it is reasonable to expect that an adult under arrest should know this. Can we expect them to know that they should affirmatively state their invocation of the right? Interrogations would be so much less effective at extracting confessions if people simply remembered what any half-decent lawyer will tell you: don't say anything and ask for a lawyer. That people don't understand this is the Cops' Best Friend. But how far do police have to go to make people understand it? After they state "You have the right to remain silent. Anything you choose to say can be used against you at trial.
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" do they need to take out finger puppets and crayons until the point is clear?

As for silence being interpreted as invoking the 5th Amendment, that too is very problematic for the dissenters' argument. What about the rest of Miranda? Does silence also invoke the right to have an attorney present? Ideally we want police doing as little "interpretation" as possible. The fewer points of law they have to think about, the better. I for one don't want them trying to interpret the meaning of silence. ANY statement, even as simple as "I have nothing to say, asshole", will invoke the 5th. Furthermore, the suspect in this case was given the "extended" Miranda and was informed that he could choose to invoke his rights at any time before, after, or during questioning.

I'm a pretty good civil libertarian and I recognize that most people know very little about their rights under arrest. And the Court has been cognizant of that over the years with Miranda, ruling that a Miranda warning is only valid if the suspect affirmatively indicates that he understands his rights and that it must be read in a language understood by the suspect. Is it too much to ask people to state their intent to invoke their rights after those rights have been explained to them?
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Sadly, the answer is probably yes, so I sympathize with Sotomayor's argument about the burden resting on the state to prove that the right was waived. That said, it isn't hard to see the majority's point that there is a limit to what we should expect of the police. After informing suspects of their rights and explicitly asking them (as is near-universal in American law enforcement) ""Do you understand each of these rights? Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?" I fail to see what more can reasonably be done to make individuals understand that saying "No" invokes legal rights that protect them.

Two independent discoveries.

First, several months ago I received an email from my mother regarding Tea Parties. She does not pay much attention to politics and wanted to know what they were because she was receiving emails about them from co-workers…and she is employed by the public school district (K-8) in her town.

Second, I work for the State of Georgia at a public university. I recently discovered that a co-worker is a self-described huge fan of all things Teabagging.

It's difficult to shock me these days, as my view of human nature and the intellectual capacities of my fellow Americans can scarcely be any bleaker. But I could spend a decade meditating with monks in the mountains of Tibet and still not be able to wrap my head around the idea of people who work for the government jumping on this ridiculous bandwagon.

I could expend thousands of words explaining all of the things wrong with this picture or I could do no work at all, simply linking to Teabagger writing about how much they hate government employees ("The Recession's Fat Cats: Government Employees"). Instead I will choose a path between the two. Let's keep this simple: is your primary source of income a paycheck containing any of the following phrases?

If so, only a superhuman amount of self-complacency can get you within 100 yards of a Tea Party event. The idea that I have co-workers (as does my mother, apparently) who cannot connect the very large, close dots between government tax collection and their own salary, benefits, retirement plan, and life savings is mind boggling. Can anyone be that dumb? Yes. Of course they can.

How? Well, it takes some mental gymnastics to turn that kind of display of raw ignorance into (what one believes to be) a consistent worldview, but it boils down to a case of fiscal NIMBYism. They see the money the government spends on their salary and benefits as good/justified/appropriate, as is the entire annual budget of whatever government agency happens to employ them.

It's all that other money the government spends that is wasteful. So Mary the Public School Secretary wants lower taxes, less spending, and a smaller deficit, all of which should be accomplished by leaving the Public School budget untouched and cutting elsewhere – usually something nonspecific and illogical like "earmarks" or "pork" or "welfare.

" You know, shit that amounts to peanuts in comparison to A) the budget as a whole and B) the money spent employing public servants, bureaucrats, and other people receiving government paychecks.

"Pork" and "waste" are just code words for "Government spending that does not benefit me directly.

" Every member of Congress sees the projects in her district as necessary – nay, indispensable – examples of appropriate government spending whereas the other 434 districts are cesspools of waste. The average American sees every tax dollar or government service that benefits them as Good Spending and everything that does not as Bad.

In other words, most of us stopped maturing when we turned 10 and we're oblivious to how selfish we are – not to mention how little sense our political worldviews make.