Episode 80 of the Power Line Show is now up and ready for listening. As promised, I return with our pseudonymous mystery guest, whom we are dubbing “Lucretia” for the time being, to continue our consideration of the 150th anniversary of the passage of the 14th Amendment. Having discussed the equal protection clause last week, we move on here to discuss the other three main clauses of Section 1 of the 14th Amendment: the “citizenship clause,” the “privileges and immunities clause,” and the “due process” clause—all three of which have caused a lot of mischief and mistakes at the hands of the judiciary ever since the Amendment passed. (We completely slaughter the Slaughterhouse Cases, for example. Sorry—couldn’t help it. . .)
Of particular interest will be our promised discussion about the issue of “birthright citizenship” that proceeds from the citizenship clause of the Amendment. As it happens, this issue jumped back into the headlines last week with the publication, in the Washington Post, of an op-ed article by Michael Anton (the previous pseudonymous author with a Roman moniker—”Decius”) challenging the current understanding of birthright citizenship (“Citizenship Shouldn’t Be a Birthright.”) Naturally all hell broke loose, with the usual one-word rebuttal being offered—”racism!”
But the constitutional argument over birthright citizenship is not new—see this Edward Erler article about it from a few years back, and also this roundup of various pro- and con- articles from the Claremont Institute, which has been talking about this issue for nearly 20 years.
At the very end “Lucretia” and I mention a few of our favorite books about the 14th Amendment. I have to confess to liking some of the older books on the subject, such as Alexander Bickel’s The Supreme Court and the Idea of Progress, and Raoul Berger’s Government by Judiciary: The Transformation of the 14th Amendment. Both are rather out of date unfortunately, but a lot of the more recent books are written in the increasingly technical style that has overtaken the legal academy, and as such are not friendly to non-specialists. “Lucretia” likes Ed Erler’s great article for the CRB (and a longer version here) on the blunders of the Brown decision, and also likes Ronald Labbe and Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the 14th Amendment.
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And yes, one of these days you’ll all learn who “Lucretia” is. But this is not that day.