August 5, 2010

Patrick McIlheran: Natural born embarrassment

Dribbles the Milwaukee Journal-Sentinel's resident hack and award-winning constitutional technician Patrick McIlheran:
So the 14th Amendment — written long before anyone even thought about illegal immigrants [it was adopted in 1868] — is why illegal immigrants' kids born here are automatically citizens? Not so fast, says Ann Coulter. It’s of more recent vintage: "Out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that 'no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.' (Other than the part about one being lawful and the other not.)"
I understand it's nearly impossible to believe, but Ann Coulter is lying and Patrick McIlheran is playing her apparently witless dupe.

First of all, Plyer v. Doe had to do with a number of children who were born in Mexico, and not any children who were born in the United States. And it didn't directly address the 14th Amendment's Citizenship Clause: "All persons born or naturalized in the United States, and subject to the jurisidiction thereof, are citizens of the United States and of the State wherein they reside."

The "Does" of Plyler v. Doe were neither born nor naturalized in the U.S. So-called "anchor babies," on the other hand, are those born in the United States whose parents may be in the country unlawfully. Some fringe conservatives have recently begun asserting that the "anchor babies" are somehow excepted from citizenship because, it is claimed, they are not subject to the United States' jurisdiction.*

The Citizenship Clause question arose in Plyler, however, because Plyler — the superintendent of a Texas school district defending a State statute which denied enrollment to children who were "not legally admitted" to the U.S. — claimed that the unlawful residents — as opposed to any "persons born in the United States" — were not subject to the State of Texas's jurisdiction.

(How in the world could even a marginally sentient conservative get behind that one? Conservatives want unlawful residents subjected not only to jurisdiction, but to criminal jurisdiction. And now.)

The majority in Plyler dismissed that claim as follows:
In [Superintendent Plyler's] view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction."[10]
To that passage is attached Footnote 10, which reads in its entirety:
10. Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was
impossible to construe the words "subject to the jurisdiction thereof," in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words "within its jurisdiction," in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
Justice Gray concluded that
[e]very 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.
As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).
End of Footnote 10.

Thus was the Plyler majority citing United States v. Wong Kim Ark, the 1898 Supreme Court case first, and then adding what is for both practical and legal purposes little more than an afterthought the manner in which a scholarly commentator had differently phrased the same thing that the U.S Supreme Court had already stated nearly 15 years earlier. An icing on the footnote cake, and a typical practice.

That is, the Bouvé citation has no force of law, nor is any suggested or implied. Nor was the majority's reference to so-called "anchor babies" unprecedented: It rested entirely upon a then-84-year-old Supreme Court ruling. The Plyler majority wasn't blithely making it up, or even importing it from some obscure, inexpert tome.

Yet the award-winning Patrick McIlheran makes it appear as if the majority had attributed Wong Kim Ark's 1898 affirmation — that children born in the U.S. to parents of questionable immigration status are indeed citizens of the U.S. — to Clement L. BouvĂ© and that's how the Plyler Court just dreamed up "anchor babies" in 1982.

In short, a perfectly grotesque example of the sleaziest kind of intellectual dishonesty. Presumably Ann Coulter has learned to read case footnotes starting from the beginning and then proceeding to the end. Based on this supportable presumption — she reportedly obtained a law degree at some point — Ann Coulter is simply lying.

As for Patrick McIlheran, he is, as usual, a continuously churning conveyor of disingenuous partisan-hack bilge.

* How do you deport them, then, is what I'd like to know.


Kevin said...

Sadly, you seem as snide as Ms. Coulter. I won't be revisiting your blog.

illusory tenant said...

Any snideness is in emulation of Mr. McIlheran.

Brett said...

the tone here is why I keep reading!

illusory tenant said...

Ha. Actually, the above is 99.9% straight narrative.

grumps said...

Dribbles comes from a log line of wrongheadedness. See below and compare to: "So the 14th Amendment — written long before anyone even thought about illegal immigrants [it was adopted in 1868]"

Thus, nativists objected primarily to Irish Roman Catholics because of their loyalty to the Pope and also because of their supposed rejection of republicanism as an American ideal.[7]

Nativist movements included the Know Nothing or American Party of the 1850s, the Immigration Restriction League of the 1890s, the anti-Asian movements in the West, resulting in the Chinese Exclusion Act of 1882 and the "Gentlemen's Agreement of 1907" by which Japan's government stopped emigration to the U.S. Labor unions were strong supporters of Chinese exclusion and limits on immigration, because of fears that they would lower wages and make it harder to organize unions

Anonymous said...

Your characterization of Wong Kim Ark as relating to parents of 'questionable' immigration status is simply WRONG. There was no doubt that the parents in that case LEGALLY resided in the US, and the decision references that fact (from wiki): " a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth."

Now please explain how this applies to illegals, since they do not have legal residence in any state.

illusory tenant said...

I didn't mean Wong Kim Ark's parents were of questionable immigration status, I meant the ruling in the case applies similarly to children born in the U.S., even those whose parents are of questionable immigration status.

illusory tenant said...

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

United States v. Wong Kim Ark