TGIF: Birthright Citizenship and the Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States....

—U.S. Constitution, Amendment XIV

Donald Trump says he wants a "revolution of common sense." If he means it, he will abandon his unilateral attempt to cancel birthright citizenship, which the 14th Amendment to the U.S. Constitution, ratified in 1868, expressly acknowledges. The opening words of that amendment have a common-sense meaning that requires grotesque mental contortions to evade.

Opponents of birthright citizenship will seek refuge in the amendment's legislative history and case law, but I don't see how that trumps the plain meaning of words. The amendment says that if you were born in the United States, you are a citizen unless a parent was a foreign diplomat. It's worth remembering that the debate over birthright citizenship is merely one part of the all-out assault on the freedom to move and work that Trump is spearheading. Since violations of this freedom affect foreigners as well as Americans, the controversy is worth paying attention to.

The Constitution does not instruct its readers on how to interpret its clauses. Common sense is called for, and no one applied common sense to the law more clearly than the 19th-century libertarian and constitutional scholar Lysander Spooner. Spooner was also an abolitionist during the slave era. He insisted, contrary to his fellow abolitionists, that the constitutional text did not sanction slavery. He spelled this out in The Unconstitutionality of Slavery.

Spooner insisted that the language of a constitution must not be interpreted contrary to the very purpose of the document itself unless the language was so unambiguous as to preclude any other interpretation. In the American case, a pro-liberty reading is required if it is not expressly ruled out. He proceeded to show that the purportedly pro-slave language of the Constitution had to be construed in a way that was consistent with individual natural rights and natural law because the purported aim of the Constitution was to protect natural rights. Nowhere in the original Constitution were the words slave or slavery used. He wasn't arguing that the framers did not intend to protect slavery. Rather, his point was that no one was bound by what the framers meant but did not say. That makes perfect sense. If those men wanted to say something, they should have said it. What stopped them? We have no obligation to perpetuate injustice.

"[I]n the interpretation of all statutes and constitutions," Spooner wrote, "the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed 'strictly' in favor of natural right." (Spooner's emphasis.)

Also: "The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings."

And "[A]n innocent meaning must be given to all words that are susceptible of it."

Surely, Spooner would have applied this principle to the opening words of the 14th Amendment. It's unclear what meaning, other than the natural-right meaning, could possibly be given to those words. Some will argue that the post-Civil War amendment was only meant to recognize the citizenship of the freed slaves. So why didn't they say that? We are not bound by a meaning that contradicts natural law if the text can be read otherwise. .

How do we know the plain meaning is consistent with natural rights and natural law? We know because only under the plain meaning will the state leave people alone who have violated no one's rights. That was the original American way. If you did not aggress against persons or property, you were unlikely to come into contact with government officers.

If Trump has his way, people who have harmed no innocent persons or property could be rounded up by armed government agents and exiled. That would violate those people's rights. Therefore, the pro-liberty meaning is the common-sense meaning and must prevail if the Constitution is to fulfill what we are told is its purpose: "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"

As Spooner put it, "[I]n order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual."

The case presented here might seem to justify no more than legal residency. What about citizenship? To take that step, one need only consider that a legal resident is subject to the government's power to tax and regulate. Since his bid for exemption from U.S. government impositions would not be recognized, we are forced to the second-best disposition, namely, that the legal resident ought to have a say—as small as it is—over government policy, that is, the privileges and immunities of citizens. Those who are concerned that this could bring growth in an already overgrown government should turn their attention directly to the size and scope of the state, rather than seeking to limit individual rights. Besides, the offspring of American citizens have not exactly been genetically or culturally predisposed against big government, have they? Immigrants are not responsible for America's falling score on the world indices of freedom.

Ironically, anti-immigration action is what would make the government bigger and more intrusive. If you ask the state to "protect" the culture from foreigners, don't be surprised when you wake up in bed with a monster.

The Constitution has serious basic flaws, as Spooner himself would later elaborate in "The Constitution of No Authority," but as long as it's the supreme law of the land, liberty's advocates are obliged to push the interpretation that most constrains the state and expands freedom.

TGIF: Spooner versus bin Laden

In his 2002 letter to America justifying the savage 9/11 attacks, al Qaeda leader Osama bin Laden (himself killed in 2011) wrote after listing his grievances against the U.S. government:

You may then dispute that all the above does not justify aggression against civilians, for crimes they did not commit and offenses in which they did not partake:

(a) This argument contradicts your continuous repetition that America is the land of freedom, and its leaders in this world. Therefore, the American people are the ones who choose their government by way of their own free will; a choice which stems from their agreement to its policies. Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians, the occupation and usurpation of their land, and its continuous killing, torture, punishment and expulsion of the Palestinians. The American people have the ability and choice to refuse the policies of their Government and even to change it if they want.

(b) The American people are the ones who pay the taxes which fund the planes that bomb us in Afghanistan, the tanks that strike and destroy our homes in Palestine, the armies which occupy our lands in the Arabian Gulf, and the fleets which ensure the blockade of Iraq. These tax dollars are given to Israel for it to continue to attack us and penetrate our lands. So the American people are the ones who fund the attacks against us, and they are the ones who oversee the expenditure of these monies in the way they wish, through their elected candidates....

It's a flawed and evil argument, to say the least, but it is clever. He threw the grandiose claims about democratic rule right back in the faces of hypocritical U.S. leaders. (Remember the panic last  year when young TikTok users read the letter for the first time and as a result news sites took it down?)

There's nothing easier than criticizing bin Laden's crackpot theory of popular responsibility for the U.S. government's crimes. What needs to be better understood, however, is that bin Ladenism was not unique to bin Laden. Look at what's happening in Gaza. Look what happened in Vietnam Iraq, Afghanistan, Libya, and the many other places I'm forgetting just now. The American and Israeli war planners are bin Ladenists! Those officials routinely kill noncombatants, regarding them as active or tacit guilty parties for not rebelling against their rulers. It's cruel to infer consent and approval from acquiescence. Overthrowing a government is no piece of cake, especially when the government has most of the guns.

But there is a difference between bin Laden and the others. The U.S. and Israeli governments devastate populations that don't even get to go through the motions of voting. Those leaders criticize bin Laden, but they should see him when they look in the mirror.

Bin Laden, like the American and Israeli rulers, never read Lysander Spooner (1808-1887), the libertarian anarchist and political/legal scholar who wrote in his short-lived periodical No Treason (nos. 2 and 6) that voting is no indication that the voters support the government. (If that's true of voters who picked the winners, it's surely true of voters who picked the losers and nonvoters.) Voters can have many reasons for voting that don't entail acceptance of the government's many impositions. Since the government will tax and regiment them whether they vote or not, they might vote to try to lessen the tyranny. It's self-defense. It does not imply acceptance of a candidate's plan for foreign intervention.

As Spooner put in No Treason: The Constitution, no. 2, and repeated in No Treason: The Constitution of No Authority, no. 6 (1870):

In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot—which is a mere substitute for a bullet—because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.

Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to....

So lay off the noncombatants, war-makers of all parties. That means no more massacres of essentially powerless people. Even the unintended consequences are foreseeably horrific. You claim you're smart, so find another way.

TGIF: Arms Sales and Democracy

The U.S. government's role as the world's premier arms donor and dealer is now under renewed scrutiny. I can't imagine why.

But seriously...

We may legitimately ask if this role fulfills democracy's promise of, in Lincoln's words, "government of the people, by the people, for the people." Or are we justified in concluding that with the government's arms distribution, democracy falls short of its promise even more so than it does in its other functions?

This is something Chris Coyne of George Mason University and its Mercatus Center F. A. Hayek program spends a lot of time studying. In this video and published work, Coyne closely examines the international arms trade, which the U.S. government dominates. Things look bad both for the arms trade and for democracy.

David Friedman, the author of The Machinery of Freedom, has pointed out that Winston Churchill's observation about democracy -- "the worst form of Government except for all those other forms" -- is not praise democracy but actually a put-down of government per se: if democracy is the best we can do, then we've got problems. 

The intrinsic flaws of democracy have been much discussed. (Here's an unappreciated example.) The problems start with the impotence of a single vote. If by your own actions you can't affect the outcome of an election, what incentive do you, a busy person, have to invest time, money, and effort to become an educated voter? In selecting a candidate you'll use criteria other than the kind you use when buying a car, a carp, or a carpet because in contrast to the marketplace, in politics your choice is not decisive.

Most people don't like to hear that their one vote does not count. They evade the simple probability. I would ask the skeptic this: if it were legal to buy another person's vote, how much would you pay? 

Related to the problem of the impotent vote is the problem of costs and benefits. When you pick out a car, carp, or a carpet, you know you will pay the price and get (virtually all of) the benefit. So you choose accordingly. Contrast that with politics, where any one voter will pay only a tiny fraction of the full social cost and get only a tiny fraction of the total benefit, say, from a tax cut. Incentives matter. In politics, spill-over effects abound, and no one, unlike in the market, has a profit incentive to "internalize the externalities." Political operatives actually benefit from that problem because they can exploit it to justify wielding more power. That's a perverse incentive.

Democracy's other flaws relate to the politicians' and bureaucrats' limited knowledge and limited ability to create social order and to their desire to advance their own careers. These are the well-documented Austrian and Public Choice critiques of government. Some political operatives may be sincere, but if so, they are sincerely deluded in thinking their method -- coercion -- works for the rest of us.

Finally, we have the problems of asymmetrical information and lack of accountability. Voters will always be ignorant about much of the bureaucracy's operations and full consequences. Closely monitoring the state is impossible. Moreover, should voters learn about the harm the government does, the costs of really changing things are likely to be prohibitive. Forget about suing the state. All of this adds up to virtually zero accountability.

Coyne builds on this critique by taking a concept -- "noxious market" -- that is used against the free market and applying it to government arms sales. "Noxious market" is a term a philosopher coined to condemn certain alleged morally offensive private exchanges. The markets for kidneys, drugs, sexual services, and other things are said to involve sellers or buyers who are so vulnerable and ignorant that the government ought to step in to protect them and society at large.

Coyne thinks entrepreneurship can provide remedies in the private market, but then asks a good question in the interview: "What happens if we extend the logic of noxious markets to the government realm?"

So one area where we focus our research is on the international arms trade. Our conclusion is that it is a highly noxious market. It takes advantage of the vulnerable [such as the powerless taxpayers]. There are massive asymmetries [of knowledge], both domestically and internationally. And there's reason to believe it leads to really significant harms for societies where the arms go, but also the broader world as well.

In other words, he says, if the objection to noxious markets is "weak agency" in some of the participants, there is no realm in which agency is weaker than in government arms dealing and foreign policy in general. In that realm, the ruled populations on all sides can hardly know what is going really on, and catastrophic unintended consequences usually result. Where do those arms end up and who are they used against?

Government of the people, by the people, and for the people is a chimera. The only alternative is a framework based on individual rights, including property and contractual rights.

 

Ten Favorite Books

Keith Knight, host of the Don't Tread on Anyone podcast, interviewed me about ten of my favorite books. 

Traces of Reality Interview

Guillermo Jimenez interviewed me again on Traces of Reality, this time about the illegitimacy of the government's debt. Have a listen.

TGIF: Lysander Spooner and the National Debt

By what authority do politicians borrow in the name of the American people and presume they may use force to compel repayment of the debt? By no authority whatsoever.

Read about it.

Happy Constitution Day

NO TREASON

NO. VI.

THE CONSTITUTION OF NO AUTHORITY

Lysander Spooner

I.

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

Read the rest here.

How I Feel about the Government's Debt

From the incomparable Lysander Spooner:

This business of lending blood-money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, among human beings. It is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. And they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived.

If you like that, read Jeffrey Rogers Hummel 1981 article on why the U.S. national debt should be repudiated (pdf).

HT for the quote: Jeff Hummel

TGIF: Obey the (Natural) Law

This week's TGIF explores Lysander Spooner's thinking on the natural law and its relationship to legislation.

Scott Horton, Lysander Spooner, and Me

Scott Horton interviewed me on Antiwar Radio the other day. The subject: Lysander Spooner and his relevance to our times. Here it is.

Happy Birthday, Lysander Spooner

Lysander Spooner (1808-1887)

One of my heroes.

"But whether the Constitution really be one thing, or another,
this much is certain--
that it has either authorized such a government as we have had,
or has been powerless to prevent it.
In either case, it is unfit to exist. "

(More here.)