Church & State -The Myth of Birthright Citizenship with Richard A. Epstein

Spokane Valley could become a sanctuary city. A different housman, Caleb Collier says that this I'm. Proposing that the City of Spokane Valley issue a proclamation stating that our city is a Second Amendment sanctuary. Welcome to the fire. Today on Church and State, the Myth of Birthright Citizenship with Richard Epstein. Hello Christian Patriots, and welcome to Church and State, where we drive morality and religion over tolerance and apathy. And I'm your host, Caleb Callier, once again, your favorite far right shock jock and the show that talks about politics and religion. Jesus Christ is our referee, so it's always nice and clean. Real quick, I'm going to point you to the website Church and State not Media, so you can do a few things. Number one, fill out that registration form so you can get our newsletter and of course a personal phone call from yours truly. While you're on the site, check out some of our most recent episodes. We continue to cover hard hitting subjects. 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And even something as small as ten dollars a month can make a world of difference for us. Lastly, if you want to get ahold of us Church and State seventeen seventy six at Proton dot me With that, let's go ahead and start this episode. And I'm excited to bring on Richard Epstein. He's a Laurence A Tish, Professor professor at NYU, a senior Fellow at the Civitas Institute at the University of Texas, Austin, and a senior lecturer and professor at the University of Chicago. Author of many books, has been featured on the Wall Street Journal and many other publication Richard, it is a pleasure to have you on Church and State. Well, it's nice to be here. Thank you for inviting me, absolutely, sir. Now, this is a really interesting subject, the myth of birthright citizenship. You have recently come out with a book with that title. Why did you decide to tackle this issue? Well, probably at two different stages. I have a rather strange legal education, so I was worried about these kinds of problems with the overlap between the common law and the civil law and the Roman law from the time I first started law school and usually for most people in Oxford in nineteen sixty four. And I always kept an issue in these kinds of questions and have written about a number of things that involve and span the gap between Anglo American law and continental law. So I recently did a lot of work associated with the so called insular cases, which absorbed from dealing with the absorption of the Puerto Rico taking over the Philippines and Guam. And I got involved in this in the more recent center because I started to hear also the things said which given my background, didn't seem to make any sense. And so what happened is you find out the first thing to say, as well, there are a lot of people who come here illegally. And I thought back to an old maxim saying nobody could profit from his own one wrong. And if you can't profit from your own wrong, you can't profit for your children, because the two of you will link together as a matter of law. And you know, I didn't think much about it. And then I saw the stuff about birthright citizenship, and that looked to be a complete cape of opportunism. People being fall into this country to get citizenship and then going back home and claiming dual citizenship, and lord knows what happens when they tried to came back, And so it just never seemed right to me. Then I've started to read all of the articles written by people who said the birthright citizenship was a kind of a self evident truth, and none of them made any sense. And so I started to dig into the original source, which is something that you always have to do, and they are two major sources. One is very familiar. It's the Constitution in the fourteenth Amendment, which says, you know, any person born and naturalized subject to the jurisdiction of the United States is the citizen of the United States and of the state wherein that person resigned. Well, I mean, what did the phrase it to the jurisdiction And people kept telling me and they were just in the state. But that can't be right, because there are lots of people come and go into the United States and tourist viess so and the moment they lead, they're not subject to the jurisdiction of this nation. And so the rule was that if we go back to the sources, as I found out that if you're within the jurisdiction on business of personal matters, you're not subject to the jurisdiction because you don't have a claim of citizenship. And then I said, well, what does citizenship mean? And it turns out most people today were associated with the right to vote and democracy, but that was not the classical definition of war because if you remember historical least citizenship was very common, but the right to vote was a constant source of battle all throughout the United States in England, and it didn't resolve itself until nineteen twenty. So then go back and you look and say, well, it doesn't seem to mean that. It seems to be a relationship in which you owe the state loyalty and the state owes you protection. And you could do that whether you're a woman without a vote, even a black person as a citizen without a vote. And said said, it didn't cure up. So then I decided, well, they said any person born their natural life. And I don't know how much time you spent worrying about naturalization, but it was one of these things that you could study in constitutional law years ago and ignore. But if you then go back and start to see how central an issue it was, you go back and you read the first of the naturalization So I opened it up with a kind of a surprise. Look, and this is the seventeen ninety statue passed by the first Congress, no dispute or descent, and it begins, any free white person may apply for citizenship. Well where did they get that from? And I looked around and somebody finally told them. Those were words that were first introduced into the Virginia Constitution under the Articles of Confederation by none other than Thomas Jefferson, who wrote the Declaration of Independence. So everything's starting to look curiouser and curiouser. Then you read a little bit further into it, and you see that this is a very serious process. You have to be a resident in the United States for two years, you have to be a person of good character, and it turns out that by seventeen ninety five you had to swear allegiance to the United States and forsake allegiance to all the sovereigns and so forth. And there was also a very explicit rule which said the status of a child is determined by the status of a parent, which is the way international law has always worked on figuring out either resident status, what country you're in a domicile where you're permanently avoted, and so none of this themes the square. And then go start to read the Constitution and they're incorporating the naturalization statues. Do they mean to repudiate what they said? Well, no, And you then look further. The stuff about race was always a big embarrassment to put it mildly, but in eighteen seventy, what they decided to do was to allow black persons to be naturalized, and they said persons of African descent, but they didn't give them automatic citizenship. They had to goes with the process. So, as somebody is saying, they passed the statute in eighteen seventy, eighteen sixty six when they voted on the fourteenth Amendment, and eighteen sixty eight when it was ratified, what they meant to do is to bypass that project so that anybody who's illegal in the United States could become a citizen, not by an immigration, not by naturalization, but natural burns the listenship, which is a slightly higher level because it allows you to run for president. So none of it made any sense to me whatsoever. And then you read all of the articles on this, and they seem to say that, Richard, you really don't understand what's going on here. And I don't care where you looked in the ACL brief in the New Yorker, New York Times, Wall Street Journal, everybody says, the plain meaning of the words within the jurisdiction are the plain meanings of the word subject, to the jurisdiction. When the two phrases are used in different places for different reasons, they can't have the same meaning. And so then you said to people, well, how do you know what the meaning of this phrase is? And this is the case in which ordinary language is not a very good guy, because these terms are all technical terms. They were drafted by people who knew what they meant. And in order to figure out the original meaning, as people constantly know, you have to go back to the time. So let me just give you one thing you've heard of. The thirteenth Amendment. May not remember what it was about. That was the amendment which started to talk about slavery we could no longer exist in the United States. But there's the same phrase subject to the jurisdiction thereof in the thirteenth Amendment, that's in the fourteenth Amendment. And what do they mean by that? What they mean to say, if you were an American person, you quint owned slavery. But suppose you were a foreigner and you came into the United States with your slaves and we could not basically free them. We might even tell you we don't want you here anymore. But you go home and so within the jurisdiction, and that amendment meant subject to the United States, is a citizen. Why does it have a different meaning in the fourteenth Amendment, which was passed you know six months later, it doesn't. So over and over again you start doing it, and then you try to figure out what's going on. And it's pretty clear to me there is a strong progressive movement on this, but also there is in the United States an unfortunate unwillingness to face up to the various questions of our racial history. And the United States was no angel at that time. In fact, the most extraordinary thing that you find out about racial history is whether you like it or not, and nobody today likes it myself. Included is that segregation of one form or another was a perfectly standard form of behavior. Even slavery was protected, although by the time you got to the United States, slavery was beginning to shake. Certainly in England there were efforts to abolish it in a limited basis, but it remained in the English colonies until the eighteen thirties. And it was not, of course, something that was ruled out by the American Constitution. Of course, we had the three fifthscause, which said slaves count for some purposes but not the other covers. So you said, well, all that got ridden by the fourteenth Amendment, turns out it then go back and you read the fourteenth Amendment, not just the first clause, but the other clauses. It's a very strange document. So you can actually pause right there. Circus, the amendment is actually kind of a controversial amendment to our constitution. There are many who claim that this thing was not ratified. In fact, if you actually examined the history there, the southern states were omitted initially, and then under military jurisdiction they were kind of forced into it. And then you had states like Oregon, I think New Jersey as well that iratified it and then attempted to move back away from that. Yees. So it's a very. Controversial amendment, and I just love your take on that. Well. I mean, what happens is whenever you have a war and reunification and so forth, you can't play the game according to the rules of oil, you always have to cheat to some extent. And so the first time we cheated when we formed the constitution. What happened was the original constitution was the Articles of Confederation. It proved manifestly on the sacretic And so they did is they had a body which came first to Annapolis and then to Philadelphia to figure out how you can improve it. And then they decided it just wasn't improvable by the traditional devices. So they said, we need a new constitution. But for that, you generally thought you needed unanimous content by all the old delegates. So what they did is they passed a court which said this constitution shall take effect if nine members vote. Were it but only for those nine members. That was not part of the original game. So you're trying to talk about legitimacy. Same thing with the first Constitution as with the Bill of right. Rd Island were they yeah. And its dominions right, They didn't even bother come to the Constitutional Convention and so well, so it happens you get all these states coming back in and they told that either approval of the fourteenth Amendment, we're not going to allow you in. And then they replaced the legislatures to make sure that they're going on. All of this happened, and nobody wants to raise it anymore because remember, this is a constitution that not only deals with birthright citizenship, but the Eagle Protection Clause and the privileges and immunities cause and everything else that we have. They spread their tentacles out throughout all sorts of areas with respect to the law, sometimes right, sometimes wrong. So nobody wanted to do that. Interestingly enough, nobody wanted to get into the originalist debate. Everybody said, we're all originalists now, and so you start to figure out, well, why did they want to do that? And then if you say, well, it turns out that this was not a originalist it's just an interpretation that we put on later. The great danger to the proponents of the birthright citizenship is, if it's just one later interpretation, why not change it with another later interpretation, the whole thing is gone. In fact, there are statutes which can arguably read to say that we ratify the understanding of the fourteenth Amendment by statute. But of course if the Constitution doesn't mean what they said it did, then referring to the constitution doesn't cure that problem. So you say, oh, we just did it by statute. Nobody who's in favor of birthright citizen wants to do that, because they know it's not a very popular political issue, particularly with the anchor babies coming in from overseas. So if it's only protected by statute, the next effect is it can be repealed by statute. So this thing is always taken on this original ist kind of tone, and there's a sort of a view of constitutional virtue which is just not true, which says, anytime you did something originally, you're always very smart in a way in which you did it. And in fact, I like to teach a constitutional law course called the Blunders of the Original Constitution. And I'm not talking about stuff that exotics with me. It's things that everybody in the United the States starts to believe. So I give you but one illustration. Can the federal court take cases from corporations as the ground that the citizen's a mistake? Well, everybody knows that a corporation is not a citizen, they can vote, and so forth. By eighteen oh six, they were all of a sudden corporations for the purposes of diversity jurisdiction. Well, what about unconstitutional? Can the federal government overrule state court decisions and that strike down a provision of the federal Constitution? The original answer is the Constitution gave no federal power to the Supreme Court. This was all left in the hand of state judges, which sounds like a piece of madness, particularly when they have thirteen states going in thirteen different directions. And just the story wrote in opinion is that this nation will not survive if we read the Constitution that way. So I'm reading it the other way to say that the Supreme Court has jurisdiction. Now, that can't be right, because the Court was subject to checks and balances in its original design, namely that the Congress could cut off jurisdiction. It's ability to review cases from beloved that's all gone in some sense. And by the time you go through all of this, the document bears very little relationship to the original one on so many points. And one of the great questions that we've had to ask is which of these big changes we're going to live with and which of these big changes are we going to try to get rid of? And there's no clear answers of all of this, and too many people now are original scholars. And what happens is you start having things that you're going to have to abolish, so to give you an illustration with birth rights to distanceship. The United States government has no power over immigration. You go back and you read the original Constitution, the word immigration is not there. You go back and you read the pederalist papers, the word immigration is not there. Well, why was that? It wasn't an oversight. Every state had an extensive set of powers to review immigrants coming into those countries, and they often applied racist criteria see whether or not those people would be allowed into the country. And this is the way it was perfectly understood all the way through until the Chinese exclusion cases. Now, the original problem with the fourteenth Amendment in birthright citizenship was starting to deal with black individuals from not may free slaves and so forth. By the time you get to about eighteen sixty five eighteen seventy, it's the Chinese immigration that turns out to be the bigger problem. And you read the cases on the Chinese immigration. They go every which way. They're extensive statutes on this particular problem, and they basically say, no uncertain terms. The police power means we have to keep out the yell l peril. You don't have to show any individual Chinese person is bad. You just say the entire race is condemned, And that was what was said Chinese exclusion cases in eighteen eighty seven. And then it was a funny case because there was somebody who went overseas and wanted to come back in. It wasn't involving naturalization, right, It was just entring and you couldn't do it under the naturalization power. So Justice Field, big shot, able judge, no fool. He says, well, the inherent power of every sovereignist to control immigration one sentence, and all of a sudden it was no longer a state function. And by eighteen ninety one we passed a huge federal immigration statute as if we always had the power. And in the cases that came through in the eighteen nineties, we said, well, if we have the power to admit the immigrants, then we have the power to deport them, right, and we may have to give them a due process, we may not. So everybody treats the immigration power as it's an absolute giving because it was passed two years ago. Chief Justice Roberts, when he talked about the case, made no reference to the fact that the Constitution of eighteen ninety was completely different on this point. From the Constitution of eighteen sixty because everybody had done it. Well, that's a very hard problem to understand an American law. And many of my friends tell me, well, if it wasn't part of the original Constitution, it's illegit. And so I said, well, let's figure out what we're going to do. Right now, you're telling me only the states can control immigration, but the states have no facilities over and so what we have to do is to abandon the federal control over the issue and wait two or three years until we get a constitutional amendment or the states start to bring things up the bar again if they can, and the whole country is going to be a catastropic. And so it happens is most people believe there's a second theme that matters, which is not only originalism, but prescription. And what I mean by that, if you do something wrong and everybody exceeds to it, and you do it for a long time, you're not going to change it. So with respect to immigration, we have World War II coming along, right, and there's a question who's going to check for Chinese aliens and Japanese aliens and German aliens and so forth, And the case comes before a Justice Hugo Black, who's a big tough time original and sure enough he reads the case and the states want to do something that he doesn't think the federal government wants, and he says the federal government has complete power over this, and then he claims this as part of the Original Constitution. It's all make believe, but what he said in effect is I can't run a security system against alien enemies of the United States by fifty independent states doing this. And everybody agreed with him. And so what we say about the legitimacy that don't talk about it because you don't want to lift up the feathers and see what looks underneath the animal, not not that's the history of our constitution. Can we pause right there, because, I mean, you've brought up a lot of really interesting points. And on this show, I'm a big advocate for states rights. I like the Ninth Amendment, I like the Tenth Amendment, and so I like competition as well. And when I'm looking at it, and yes, would it be chaotic to go back to. Something like that. I understand that I'm not this pie in the sky idealist. I understand that, but I do see that as a benefit where we can have direct competition. We can have states like Tennessee or Texas that is like, you know what, we're doing things the state level, and we are thoroughly eyeballing every single person that's coming in the state. And you've got other places like California, maybe New York, who's like, we love everybody, we want to invite everybody in. I think it'd be a pretty interesting experiment to see which states would succeed and which would fail. Well, that's true with respect and migration between states back and forth, and we know what the answer is. The difficulty is with common entry. You get into one state in the United States, that California, you're in every state in the Union because of the other provisions which call for a national market, and so you can't do that. Indeed, what happened was the state's rights problem has two sides. So one competition when competition is possible, So you want to tax milk, and we don't want to tax milk. We're going to get more customers than you do. But then there's the question you have a railroad that goes across the entire country, and can each state decide whether or not it's going to come into that state or not. And what you do then is you don't get competition, you get blockade. It's like the famous stories about the Rhyme River, where every ten miles is another Ducci and you can't sail up and down the river. So in eighteen eighty six the United States Supreme Court basically recognize the power of states to exclude and to regulate in different ways. And in eighteen eighty seven we passed the Interstate Commerce Act to essentially subject to single regulation. And now you get to your proper rhyme. So suppose what you do is you have a solely interstate railroad, okay, and it's not part of the general system. Your view is that they should be able to run that railroad because there's no blockade issue. Now, I happen to think you're right, but the Supreme Court happened to think that you were wrong. Back in nineteen thirteen, and there was a famous case called the Shreveport Rate Cases. It was decided by Justice Charles Evan Jews, who later in his second stint on the Supreme Court became the Chief Justice. And he said, if you're in competition with a federal on. Now we can regulate you. And I'm looking at you and think, what are you going to stay? You say, wait, a second, competition is what we want. But you got this exactly backwards. If this were part of a blockade problem, yes, but if it's a competitive problem, no, and you'd be in my view one hundred percent right. I'm gonna tell you, sir. I think it's really fascinating that this occurred in nineteen thirteen, arguably one of the worst years in American history. We get the income tax, we get the Federal Reserve, and now we have this as well. I didn't know about that, but I find the year very very interesting. Well, try nineteen fourteen, because again you get more stuff from Woodrow Wilson and the Progressive including the direct election of the Senate and things of that sort. The point about all of this is, if you actually want to study this seat in some detail, rate regulation was probably the dominant issue in the United States from about eighteen seventy to about nineteen forty as you try to figure out how you handle an economy which now has national businesses, so that competition is possible on a global basis, and so is monopolization on a global basis, and they really worked hard to try to figure out what to do with it. Some of those justices were amazingly sophisticated on these rate cases, and some of them it was a complete night man because they go both ways. There are two kinds of industries. You have one, there's very big, lots of people in it, and it's all competitive. And if somebody now says, to use the magic phrase of that time, they're affected with the public interest, it means that you can put rape regulations on them. And these are rate regulations that are monopoly regulations, right. And then there's other people who say, no, they're not affected with the public interests in the sense that states could regulate them. You can only stop monopolies, you can't create them. And the big battle in the progressive era was the Roosevelt and progressive forces wanted to use regulation to create monopolies, and the classical liberals, I would count us one of them, myself as another one, only want to use it to stop monopoly power. And we could never make up our mind. It was a famous case in nineteen thirty four called Nebia against New York, in which what New York said, we're going to have a very strong dairy industry. You cannot sell milk for less than nine cents of court. And so some guy sold two courts of milk for eighteen dollars eighteen cents and threw in a loaf of bread, which meant that some portion of the consideration had to go to the bread, which meant that you were selling below. And there was a criminal prosecution and it was sustained by the United States Supreme Court. And so the tendencies that you're talking about are always contradictory. Are constitutional. History is made by judges. They're not always so smart, sometimes they're very smart, and then it gets abolished by various kinds of statutory style, one kind or another that makes it easy to harder him not so difficult. And so the whole subject is filled with contradictory trends. With the birthright citizenship, just to get back to that, I think it's pretty clear that there was nothing at the time which supports the claim of birthright citizenship, and the administration of justice after eighteen sixty eight was done pretty much the same way. One of my colleagues, Sammets Striker, basically did a study of all the administrative decisions by the Attorney General on citizenship application, and he basically followed the traditional view that's subject to the jurisdiction, meant that you had to claim citizenship, you can't just do it on a temporary basis. The history gets there there when you listen to the Supreme Court, it's interesting the Chief everybody made lots of mistakes on the law. So for example, Justice Kajanji Jackson, she gets this, we ought to look at the kid, not at the parent. Well, she's overlooking two thousand years of intellectual history where it was always the parent that determined the status of the minor. But if she did that, this is what would have happened to her case. Wan kim Out was a kid, his parents were a legal permanent resident. If the status of the child turned on the status of the parent, he would be a permanent legal alien, but he not be a citizen. So the case would go the other way. So she tries to figure out, well, how do we make him mister district They said, we look at his domasile. So now you've got a two day old kid and you're trying to figure out what its mental state is about where we're still lived his rest of its life and it's a joe. Well, if the child had his opinion on it, he'd probably still want to be in the womb. To be honest, there was warm and safe in there. Yeah, I mean. Stuff. Yeah, sir, we're actually we're actually coming up on a heartbreak. And I want to make sure to push the website here. I want people to buy your book, The Myth of Birthright Citizenship, and Chris, you are putting it out on it right there in Counter Books. You can also get it out on Amazon as well. But order this book because it's a fascinating conversation to have about this myth. What does citizenship actually look like in the United States. Now, I'm not done yet. We're going to continue with this great interview with Richard Epstein. This is Caleb Collier with Church and State Dot Media. Laies and gentlemen, if you're not sleeping on my pillow, do you even patriots? I gotta tell you, this is the most. Wonderful stuff from a man who's given it all for your freedoms. Whether it be the pillow, the sheets, or the slippers. I absolutely adore my pillow. My pillow has the greatest products around. I know when I want to shuffle around in my bathrobe and slippers and yell at the neighbors. Of course I'm buying from my pillow. I need you to head on over to Church and State dot media scroll over to shop because every single time that you purchase any of these products using the promo code Church and State, you ensure that we keep our message out on the air. I thank everybody for your support and using a promo code Church and State. You guys, you go to my pillow at dot com forward slash Church and State too, and then you get your own known platform right there. Anybody, and we are back and thank you for staying with us. You're over at Churchendstate dot Medium. We're going to go right back to our guests. But real quick, I do got to plug one of our great affiliates, and I'm thinking coffee, ladies and gentlemen. I mean, we're talking about all this history of the United States, the Constitution, original intent. Well one of the original things about this country is we like coffee, not tea, Okay, and so if you want to get some really really good coffee, we recommend Hunters Blend Coffee. Chris is going to bring that up for you real quick. But I'm telling you, a smooth cup of coffee, it just makes the day, doesn't it. We don't stretch out our pinky and sip at tea now, we don't. We drink coffee here in America. So check out Hunters Blend Coffee and of course use that promo code Church and State and you'll get a little bit of a discount and you'll help support us here with what we're doing. Also, speaking of support, I'm just going to remind you one more time hit that donate button for us, ladies and gentlemen. It's so important to keeping us on the air. And if enough of you just throw five bucks, ten bucks, whatever you can do a month in it really does help us with what we're doing, keeping us on the air part of all these great networks. With that, let's go back to our guest in the Myth of Birthright Citizenship, joined once again by Richard Epstein, the author of the book. And I had to cut you off, sir, but I'm really I got to tell you, I'm really enjoying this conversation. It's a real intellectual one and it's one that I don't I think far too few people understand you were basically reading Supreme Court Justice Jackson the Riot Act and please continue. Well, I mean, what happens is the prize are so strong, the argument lack of a certain degree of can the government lawyer marked God, but he decided, is I can win on the chief I don't have to deal with him the naturalization acts. I could win under one kim ark, the case that everybody relied. On the other side, it talked about permanent legal aliens. Well, the illegal Alians therefore are not protected, and the temporary visitors are not protected. And he went on that line, and he had a very strong case that it was true. But what happened is the people on the other side found a passage in one kim ark which said exactly the opposite, that anybody who was born in the United States is in fact the birth right citizenship. It was a side of an interesting passage because what it did is referred to flight explicitly to the situation where you have Scots and Germans applying for citizenship, and so you're trying to figure, well, what is he doing here? And his motivation was pretty clear but somewhat obscure. I noticed I think both things at the same time. So what happens is many people came into the United States before the Civil War and they just didn't bother to go through naturalization. It's a process even though they were eligible. And of course they married and they had children, and since they're not citizens, well what about the status of their children. What they did is they apply to rule similar to the one I mentioned to about constitutionalism, where you can do something long enough or wrong becomes a right. And so what happened is people who were eligible for citizenship didn't get it. They and their children became with the passage of time citizens because nobody wanted to send them back home. Areds of limitations like this with the ownership of land that existed since the beginning of time, and if you actually look at the international treatises on prescription and jurisdiction, and so they all used the concept. The most famous man on this is a man named Betel that nobody's heard of today, but he wrote in seventeen fifty eight and was the most influential scholar in internet law for the next one hundred and fifty years. So I mean, I'm not talking about renegade's doing this. I'm talking about God. Well, you then come forward and you look at the people coming under the Chinese Exclusion Act. Their problem wasn't that they didn't bother to fill out the formalities. Their problem was there were no formalities that they could fill out which would allow them to become citizens. If you look at the facts of want kim Ark, it's first sentence said he was born of Chinese parents, carried a Chinese parents' boy. Obviously, it never renounced his Chinese citizenship. Ergo is not eligible for citizenship in the United States. That's the whokay. And then what we do is we get this variation on the other thing, because he was genuinely offended, as them are, by the fact that not only did they say you want kim Ark, you can't come back in as a citizen. You can't come back in at all. Because the view of sovereign immunity is one which says, no matter what your right saw, the king could do no wrong, the federal government could do law. And if we promise you solemnly make a promise to you, binding promise we thought that you could come back in, we could renounce it and send you a seat. I regard that as outrageous, and in fact, most Americans do not think that sovereigns are allowed to back off their word. And interestingly enough, this issue came to a head the next year dealing with the Tucker Act, allowing people to bring claims to recover property from the federal government, which the doctrine of sovereign immunity would blow. So this tension has been around from the beginning of time, and what you saw was that particular resolution. So I think you could distinguish the case. But once you can't do that. Now you still have to worry about domus dicice. The word is used by the judge in the opinion it's wrong. He should have used the word resident, and then he should have referred back to the naturalization. So they have to decide what his domi style is. And if they decided his domicile is the same of his parents, every rule on do missiles says, if your parent is not an American citizen, you are not an American citizen. They start looking down. Then other problems is we had the English practice. This is under Blackstone, and England was a very different country from the United States, and it's a very important chapter in Blackstone that talks about what goes on, and he divides it into two parts. One of them is local allegiance and the other is permanent or universal or general natural allegiance, whatever you want to call them. And the first one deals with people are visiting in other countries where in effect they have to follow the rules until they leave, and then when they leave, they're gone. Well, Justice ca Chanzy Jackson, she thought that local jurisdiction was the same thing as the universal jurisdiction, just got it wrong. I mean, Justice Kagan comes along and she said, well, the English practice was the American practice, and so therefore we had birthright citizens that in this day. Well she was wrong too. What happened was the English had a practice of birthright citizenship for French people who had children in England. We had no idea how much it was enforced. Because if you took your couple home and you were still French citizens, you really want the dual citizenship. And remember one of the things to understand about citizenship, it's not a right, it's a status. And so you go, for example, in many American comms like Samoa and some other places where they have very complicated rules of citizenship with heavy sex based rules amongst themselves, which have very strong local allegiance, and you say, well, you're a citizenship of the United States. We don't want to be citizens of the United States. We want to have our rules, we don't want to be bound by federal rules on that. And there was a recent piece in the Wall Street Journal by somebody who was a member of a standard tribe and he says, you gave me citizen back in nineteen twenty four. I didn't want this citizenship. You should have done for me what you did for Puerto rican And the rule in Puerto Rico was that had an option to become citizens under a statute that passed around nineteen sixteen, but there was no compulsion. So you can see that just so many layers of confusion with this, and then what happens is they got the federalism point. The United States Constitution is very clear. The only thing that's clear is that Hamilton said in the federal's papers, we need to have a uniform rule of naturalization, which means only the federal government can decide it. Until you start looking at these cases, you still have states and the states are not found by the federal rule, and so it happens you get a whole bunch of cases starting in the early nineteenth theentry going up to the Civil War, essentially, in which they make state decisions ganting citizenship to people who would not meet the federal rule. Hardly. They were not birthcase. They were cases like, I want to sue to recover property that was left to me under the will of but I'm an alien. I can sue because the rules in the United States, in New York, for example, board no aliens could bring suit in the state to recover personal or real property. So you did it. You presented the guy was a citizen so he could get the property back. Later, when you get rid of the ban, you don't have to do that anymore. And then somebody wants to vote in a local election or inherited property in a local election, and they have all of these decisions trying to handle it. None of them bind the federal government, which is stuck by the other thing. And they had, of course the uniform policy, which went exactly in the opposite direction. So what you do is you're citing state cases when they're only exclusive federal party and then just to get it wrong, you mess up some of the state cases as well. They don't even get them right, So the whole thing is much more complicated. And the thought that well, there was birthright citizenship in Blackstone solves the problem misses the fact that that part of the statue because it was a statutory regime and they didn't get carried over into the United States, and you look at the Constitution, this is business as usual. So back in. The to the allegiance, because this is a really interesting point in just reading kind of. The bio on the book. Here you talk about allegiances, and I think this is an important distinction for my audience to understand what exactly does that look like for somebody who was born herest Most people have not taken an allegiance to the United States. I'm an exception here. I served in the United States Marine Corps, so I took an oath. I was also a city councilman, so I took an oath to the Constitution. So I have actually sworn an allegiance. But the vast majority of people currently residing in the United States, they haven't done that. So what does that look like? Well, I'll give you the thing. First of all, there is the pledge of allegiance best allegiance to the United States and to the Republic, but which is lots of people said that, But the concept itself is a little bit more elusive than that. It is not the mental state that you take unloyalty to a nation. It is a status that is given to you with birth by being an American. And so if you're an American, you get protection by us from us, and you are loyal to us. What happens is that leaves you in limbicrome. And so in many cases they follow the old English practice. You're a child born and you inherit land from your parents, so you're now subject to the king and you owe them direct boils under the feudal system. And the king says, look, I'm a little bit nervous about you God, so i want you to swear allegiance to me. So it's to make it not a status issue but a content iss and a conducition. And so what we do is we always do it both ways. But the key point is if you're not a citizen by birth, you cannot swear allegiance and get it that way. If you're a foreigner of somebody who's not an American citizen marches in and said, I hear by spas allegiance to the plague of the United States or the government. He's not a citizen because he doesn't have the first part. Now it gets more complicated, right, You know this what happens to people who were born overseas with one or two American parents and the rule for them turns out to be different. It's not just a question of swearing allegiance and having allegiance. But the theory was that you have influenced so many other places that are not American that you now have to come back to the United States and send some time here in order to perform acts that demonstrate the kind of loyalty you have. Somebody who is not a citizen could never do those things, but somebody who is a citizen now has to do those things. And so you look at the Immigration and the Naturalization Code. The book is this thick because it has to deal with all of these variations. It's one of the things I owe you say to people. When you read a constitution, you could read it very fast. The United States government has the power have a uniform rule of naturalization and a uniform rule of bankruptcy. Well, that's perfectly clear. Then you see the way in which it plays out. There's one complexity after another, and all of them start with the first Immigration Act, by the Naturalization Act. It's there by the time you get to eighteen seventy, right when they gave Blacks the right to applot. The statute is now forty pages long or thirty pages long, and it just keeps getting bigger and bigger. And then this is the administrative state, right, so it's not that we just have a statue. Then we get all the regulations under the statue. And then it's not just under immigration, because I mentioned to you. If you have the power to immigration control immigration, have the power to control deportation, and well there's just huge battles in the eighteen nineties. Can you do that administratively? But you have to get people and that issue is still very much with us today because you get all these graduate students coming in. And then when you have immigration, it doesn't necessarily have to lead to citizenship, right, it could be for a limited periods of time. So you put the two powers together and basically it's a full time occupation for lawyers and for administrative even the administration for example, and university. On this topic, it's very different from one of his performs when they're bringing people in and you're never so you have to go through this and take us to re a patient. And what I did is, look, I wrote two hundred pages on the birthright question right, and I separated from lots of other things. Since the book has come out, I've learned enough from enough people about something else. I could probably add another twenty five pages on it without repeating myself. And in fact, I mean who knows whether or not there will be a second edition of this book depending on the reception of the first edision after the Supreme Court issues this decision, which will probably be in late June of this year, and then there'll be this huge commentary on the part of people on both sides. But people come up more and more arguments. It never ends. And this is true of the Constitution. So, for example, my degree of expertise is supposed to be on takings, right, And you said, well, that's not a very difficult problem the governments. To build a fort on your land, it has to pay for it, right, Well, by the time you get done. Sometimes they want to occupy the land. Sometimes they don't want to occupy the land. Sometimes they want to occupy the land for a short period of time, sometimes for a long period of time. Sometimes they want to give you compensation in cash. Sometimes they want to give it you in kind. And so when I wrote a book on takings it is now forty years ago, it was three hundred and fifty pages. If I had to revise it today, I don't think I changed my general view, which is similar to yours strong protections of property, but I pa have to add a couple hundred pages just to keep up with recent developments, not only at the federal level, but at the state level, because all these states that are taking clauses which don't quite resemble the government. And so it turns out law is a very funny business. If you stick to the straight and narrow and to the easy cases, which are most of the world, what happens is you can live sensibly. It must have bad fake people. But the moment you start talking about idiosyncratic problems. Right, So, what the government does in the penn Central case is it doesn't occupy the air rights over the Penn Central. It just prevents you from building on it, and then it gives you rights to bill over some other places that we can get the ground rights and so forth. By the time you do that extra ten percent, the problems are now a thousand times larger than they were at the beginning. And so laws an expanding universal frustration anxiety that was that we have to live with. But that's it. So, I mean, one of the things you try to tell people is that people like to use the word just and they don't mean that's injustice, but always just a question of filing a lawsuit. Right. Oh really, now let's go back to it. You have to file a lawsuit. First, you have to know which court to go to, they have to figure out which form to get, and then you have to know how to serve this wawsuit on the other party. And then what happens if it turns out they're out of the jurisdiction, what do you do? Then? Those civil procedure on process is a book of itself, right, and you may not face all those problems in any given case, but you'll certainly face one or two. And so when you go through a lawsuit, it's twenty different stages. There's no way you just sue anybody for anything, and so then there's also can you arbitrate the case? And if so where and if there's a judgment, how do you enforce the judgment? And so on. It's much more complicated. And this is why what you need in the society is the form of comedy coom t y, a willingness to play by the rules without being forced to do so, and to do so when they're in your favor, and to do so for the other guy when they're in his faith. So it's a kind of trust be course generation. And if you look at the United States Congress, that trust across sessions is completely gone today. Right. This started back in nineteen by two thousand and one with Mick Ballastrada who was kept off the court by the Democrats because he was too far by this hispanic and might actually go on the Supreme Court. And then it's just tit for tat all the way down Lomont and you see the party start to buy for kat. Trump is a controversial figure. You have, I'm sure misgivings about much of him what he does as I do, and support much of it as I do. I mean, I have a phrase about mister Trump called trump alacart. Whenever I look at something, I don't know whether I can on the menu, and I have to look at it separately. When I look at the Democrats, I don't have that problem. Everything they want I seem to be a posed to. So it's much more of a per se rule. Well, if you're living in an ad hoc universe, you got to do a lot of thinking to figure out where you're going. And that's what my urging to people is, I think, in effect that there is in the learned classes in the United States, not by Trump, who's by the way, executive order was quite good, not sloppy at all, to think that he was completely wrong. And then the question is could you get them? Actually is say, hey, why don't you go back and read some of these sources and see if you might be prepared to change your mind. And at this point the major media has not changed its mind, and they write more and more partisan pieces that make more and more mistakes. Nobody who was on the Supreme Court case actually did a lot of hard work to figure out what was going on because they had all these preconceptions and so forth. And the question is, now that the landscape has changed a little bit, will the Supreme Court reconsidered? Now what do I mean by the change in the landscape. Well, there was a recent report which said in twenty twenty three, the last year for which we have reliable numbers, the percentage of American citizens who got birthright citizenship while being anchored babies than coming here was ten percent of the total population. So that's three hundred thousand or more people. And you could do that every year. That is not acceptable to most Americans. Most Americans are actually pro immigration within channel, which is the way I am. I mean, you start looking at all the great people who came to this country, who managed to escape walhorse of prosecution things everywhere else, you can't think of the wise. Indeed, I always like to remember people. Well, I was born April seventeenth, nineteen forty three. My ancestors came, some of them from Poland. On April nineteenth, nineteen forty three, you had the warsaw, get up, the execution, and the rebellion. Well, you know, being here at the Brook and Jewish hospitals a lot better than being somewhere else in Russian or the Nazi domination. I think once we recognize that, what we should try to do is to figure out how to make this process you mean and relative, and you know, sometimes we do it. But it's a very difficult question on these things. But what you can't do is have a debate. You're hanging over. The debate is the proposition that the people who determine whether they come here are the illegal aliens, not the United States, which says we want to organize the process in our own way. And that's what's really at stake in this case, the birth rights inundation that you see because of these organized services bringing people to Gwaman and so forth to give birth to a baby and going home. That should get people poured. And I think it has given people pour. And so if you started even at the oral argument the babies who wash over on the United States illegally, people don't care as much about them because there aren't as many of them. Right. It's the other half, which is weaker, no sympathy whatsoever, that tends to dominate the debate. And I think it's quite likely that the Supreme Court, god knows what it will do, We'll split the baby and it won't worry too much about illegals coming across the border, but we'll worry about the birthright case. Now, why is that the right choice? Joe Biden not only did he not keep people out right, he basically carried them across the border and released them in the United States, whether or not they had COVID and so forth. And there were probably three million people that he brought into the country. And in fact I wrote an article it's that the states are now entitled to keep them out because the federal government when it took the power over, had to do both things, let people in and keep people out. Otherwise back to the states if they don't do it well. Donald Trump has basically reduced the amount of illegal immigration into the United Strates to a tiny fraction of everything right that they previously did, and so that problem could be controlled in another way. It is also the case I think that virtually everybody, when they think about this, has the following intuition on this subject. The intuition that they have is I don't want people who've been here for fifty years and raise their families here who in effect are illegal in some technical sense. I don't want them thrown out of this country on their here. There's just too much of an embedded nature in there. It's like prescription again, the same thing we did before. And I think in effect that's what Trump said he would do. And you know what people said against him that we don't trust the man and he's not found himself to do that in any serious way, So we can't trust them, which means that if you're allowed to stop future flows, you can't stop people. You have to expel people with pass flow. And that's just not the way the wars ever run. It's called the reliance and you could build that into statute, you could do it in any number of different ways that Supreme Court could do it. You don't have to let that tail this particular door. And so what happens is the political side, I think becomes much more important. As you know, for example, when it came for citizenship for people who were born in this country illegally, spent their entire life here, graduating from college in law school, the willingness to give some kind of protection is very, very great if you could work out a political deal to do it. And I think that's still the right way to do it. The political process is the right place to go. But you don't want shingle Wists and phobia type people to control that particular process. And I think if you did this as a political matter, I think there'd be more in common between the left and the right on who should stay and who should be kept down. That would absolutely agree with that, sir, and I encourage that on this sh show quite often. Actually is more conversation, more proper debate, because this tribalism that we're currently operating in it is not benefiting Americans at all. We've actually ran over time, but you know, it's such an interesting subject. And I got to say, I don't think you're done yet. I think immigration is going to continue to be a massive conversation in American politics. And so while you've only written this one book, I could see a second book coming in. I see a lot more people commenting on, you know, different things, arguing about what you've written in here. So I'm going to go back to the book once again. I want people to read this book, The Myth of Birthright Citizenship. Chris has it up there in Counter Books. You can also get it on Amazon as well. And so as we're closing out here, I just wanted to give you any last words is to my audience as to why they should read this book, why they should understand this very important topic. Well, I mean the way I'm going to say it is sign of this is in some sense of boring book. Now what do I mean by that is there no hypertechnics in there. But I try to do is to give a very accurate and readable account of what's going on, without the hyperbolic stuff that could divide people from one another. Indeed, one of the things that Encounter Books made me do on this is they hired me a very aggressive editor and what he said is I don't understand this part. You have to write more. He said, this is too cryptic. You have to fill it out. Ordinary ordinances won't get this, and you do more. So what they made me do was to be less of a professor and more of somebody who tried to write accessible pros. I think those people actually succeeded in what they do. And so the goal here was to write a book which was balanced, essentially accurate with respect to the sources, and readable. And if you read everything else, you're going to get much too much hype on one side. No two sides. And the other thing I did which nobody else that, even those people who somewhat agree with me, is I have a very clear historical narrative. You start with the amendment, then you go back in time, then you go forward in time. So the fourteenth Amendment is the set to piece, but essentially you do it. Most people, when they write about this historicity doesn't matter. So one paragraph's about eighteen thirty in England, and other it's about nineteen ten in the United States. And I think the historical approach makes it much clearer to people than any other kind of approach, and that's why I would urge people to read it. Well, I also urge people to read this book. And I got to tell you, sir, it's just it's been a pleasure talking to somebody who is also a classical liberal. And if that upsets you, audience, I'd say, do some studying, look into some poor ideologies. I wrote a book called the Classical Liberal Constitution. I saw that, actually, yeah, and that'd be a whole nother conversation to have. I mean, this was a book which essentially try to do it from soup to nuts. Although I ronic, Clint, I mean every serious study of the Constitution that up to about twenty twenty, twenty nineteen, when they talk about it, they don't talk about this problem. Even in connection with the Equal Protection Corps. The entire debate over segregation and everything else flips over just the last fact to mention too, it's a frightening fact. The only way they got the fourteenth Amendment through was to deny the federal power, federal government power to give the boat out either Blacks week, How do you like? That? Kind of scary, isn't It? Absolutely is? And I kind of operate under the premise that I'm pretty much worried about the federal government all the time. So great conversation to have, sir. I'm going to go ahead and close this out, if you hold on one more minute post production of Saarah goodbyes. I appreciate it, but I really thank you for your time and only if your work on this very important subject good. It was great fun being with you, excellent. All right, Well there you go, ladies and gentlemen. A very very interesting conversation, one that far too few of us know much about. And so, as I tell you on the show all the time, I'm encouraging independent thought, conversations, debate, and especially to educate yourself. And here's a great opportunity to do so by reading the myth of birthright Citizenship. Church's State is brought to you in part by Colonial Life Book and Independent Agents Finders Insurance and Mark three. Seven dot com. I'm Caleb Callier. I was born for a storm. Welcome to the five. This is Caleb Callier with Church and State. Are you tired of your device spying on you? Ladies and gentlemen, we live in nineteen eighty four. Your phones, your tablets, your smart televisions, they all are spying on you. And this is why I heavily endorse Mark thirty seven dot com. This is everything you need for your digital privacy. Phones, tablets, laptops, all of them are ghost protocols, so that means that you are in charge of your own data. Just go to Church and State dot Media, scroll over to shop and hit Mark thirty seven dot com for all of your privacy needs. Make sure to use that promo code Church and State. Hey, this is Caleb Collier with the Church and State podcast. Ladies and gentlemen, I want all of you to go to Galileo dot com. 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