Birthright citizenship and “subject to the jurisdiction thereof”

President Trump says he wants to issue an executive order rescinding birthright citizenship to children of illegal immigrants (and possibly other non-citizens). His opponents say, among other things, that such a move is unconstitutional.

But are they right? I’m going to argue “probably yes, but not for the reasons the news analyses I’ve seen think.” (My analysis would also make it unconstitutional for Congress to do this, as well.) Kinda wonky stuff, but here goes:

The relevant part of the Constitution comes from a clause in the 14th Amendment, which states:

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

This amendment was passed in the aftermath of the Civil War, and its primary purpose was obviously to grant citizenship to former slaves. But it spoke more broadly than that, and we are correct today to interpret it more broadly.

The key line is that little phrase in the middle of it: “…and subject to the jurisdiction thereof…”

The Amendment would be absolutely clear if that line were omitted. Everyone born in the US would be a citizen, period, end of discussion. But the amendment includes that pesky little “and.” That appears to create two tests for birthright citizenship: (1) being born in the U.S.; and (2) being subject to U.S. jurisdiction.

Trump and his supporters appear to be arguing that illegal immigrants and foreign visitors fail the second half of that test. But that’s not true, except for a small number of people with diplomatic immunity or something akin to that. Other foreigners, legal or illegal, are very much subject to U.S. jurisdiction.

The opposition appears to be arguing that the line is simply another way of stating “born or naturalized in the United States.” But that makes it redundant, and therefore meaningless. And courts are very reluctant to write off such lines as meaningless.

So what could that line actually mean? Who could be born in the United States and not be subject to its jurisdiction? Or, more importantly, who, in 1868, when the 14th Amendment was ratified?

Framed that way, the answer is pretty obvious. This phrase was designed to exclude Native Americans, or a least a great many of them. In fact, Native Americans weren’t granted citizenship until 1924, when it was done by an Act of Congress.

Why is this important? It is, of course, another indication of how badly our country has treated Native Americans, and how slow we have been to correct for it. But it also gives this phrase a meaning quite different from the one presumed by President Trump and his supporters. That means that if he actually issues the promised executive order, the 14th Amendment still blocks it…but not at the cost of ignoring an entire phrase.

Whether the President will actually issue that executive order, I don’t know. but the better we understand the citizenship clause of the 14h Amendment, the more informed the discussion will be.

PTSD, Memory and (Yes) the Supreme Court

This post is nominally about the he-said/she-said dispute over Brett Kavanaugh’s nomination for the U.S. Supreme Court. But that’s not the topic. Not really. What it’s really about is decades-old trauma and why Christine Blasey Ford did not deserve the endless attacks on her allegedly shifting memories.

This post also comes from personal experience.

No, I was never sexually assaulted as a teenager, thank goodness. My experience was more mundane. At about the same time Dr. Ford remembers fighting off her attackers, someone marched me into the woods at gunpoint with the probable intention of killing me.

At least, that’s how the police viewed it at the time. My view was simply that there was a period of time in which I estimated my life expectancy in seconds.

Eventually, I escaped, partly because I was a 38:12 10K runner, and once I got a chance to put an obstacle between me and that gun, my legs took over. I was off and gone, hoping to get far enough away to make it a difficult shot before he could get a clear line of sight. It worked, because I’m here now to tell the tale.

Telling this story still brings up a bit of PTSD-related adrenaline. I can’t imagine what it would feel like if someone like President Trump was busily assaulting my memory of the event the way he has Dr. Ford’s.

I’m a guy, and can’t speak for women. I definitely can’t speak for Dr. Ford. But what I can say from my own experience is that memories like this are weird. Some things are in sharp focus. Others are a peripheral blur. There’s actually a whole science of this in sports psychology, where Olympic athletes can feel the same thing. A Tour de France cyclist once said that if a train wreck occurred beside him during the race, he’d know it had happened, but only in a sort-of disinterested academic manner.

Not to mention that memories warp with time.

People who don’t believe Dr. Ford see a shifty, untrustworthy person trying to spin her memories for maximum political gain. Having been in my own traumatic situation, however different, what I see is someone struggling across the decades to figure out peripheral details that had never before been relevant.

Start with the date. Ford was criticized because she initially said the attack occurred in the “mid-1980s” before settling down on 1982.

Forget the question of whether, 36 years later, there’s a meaningful difference between “mid-1980s” and “1982.” It’s not as though, when I was marched off into the woods expecting to die any second I was busily memorizing the date. (What I did memorize was the guy’s license plate number. I could recite that for years afterward.)

If I wanted to know the date, I could get it easily, because I was a robbery victim, not a sexual assault victim, which meant I felt a lot safer in reporting it. In fact, they caught the guy within a couple hours and convicted him a few months later.

But without going to the courts and looking it up, all I can do is what Dr. Ford appears to have done: try to figure out how the event fits into the sequence of other memories in my life. For example, I was in Alaska on a summer law clerkship. I only did that once, so that’s a huge landmark. Furthermore, I was on my way back to college to finish my Ph.D., so it was probably just before the start of the next semester.

The event also inspired me to do something non-academic for a bit, so I worked on a political campaign: specifically, John Anderson’s independent run for President. (He’d been my congressional representative for many years, so I’d had a pre-existing interest in him.)

Put that all together, and I get sometime in late August or, maybe early September, 1980.

And, when I started writing this post, I’d have told you I was pretty sure that that was the date. But, there’s a problem. If I play back a different part of my memory timeline, I get the date as 1979, not 1980. If so, my work on John Anderson’s campaign must have been a full year after the robbery that inspired it.

Does this mean I was never robbed?

I also know that when faced with events like this, your mind picks out specific details. Blasey Ford recalls her assailants’ laughter. I recall staring down the barrel of my assailant’s gun.

Later, the grand jury peppered me for details. What caliber was it? Was it a single-action or double-action? Was it loaded? Why didn’t I fight back?

Some of their questions were ridiculous, others were simply beyond my knowledge of handguns. And all I could say about caliber was that it looked like a cannon, but that was probably a matter of my perspective at the moment.

What I was certain of was that it was a revolver. And when asked if it was loaded, all I could say was that I didn’t know if there was a round in the chamber. But I could see four bullets, two on each side, staring at me. From their positions, it had to have been a six-round cylinder.

There are other details I vividly remember, including how I escaped. But two decades later, I was vacationing in Alaska and had a chance to revisit the scene of the attack.

It was easy enough to locate, because it was a scenic overlook offering a view across a valley to a large glacier. That’s why I’d been there in the first place. But beyond that, little fit my memory. It wasn’t as isolated as I’d remembered, though new construction might have accounted for much of that. What really startled me was how short the trail into the woods actually was. Adrenaline messes up our sense of time, often by making seconds feel much longer. If you’re walking or running, that, in turn, messes up your sense of distance. I knew I was in the right place, but it didn’t match my memory.

Again, this was a robbery and possible attempted murder, not a sexual assault. There are major differences. I did experience some degree of PTSD, and I have sometimes feared being judged for getting myself into such a dangerous situation. But that’s nothing compared to the approbation sexual assault victims often feel.

My point is simply this. My own experience was pretty mild, compared to Dr. Ford’s. But if I have trouble distinguishing the gun that was pointed at me from a Wyatt Earp .45 Colt…and if my sense of time and distance are warped regarding an event about which I testified to a grand jury only days later…why shouldn’t Dr. Ford’s memories be even more slippery?

The important details truly stick. I know it was a six-shooter revolver. I will never forget those four bullets, staring at me evilly, two on each side. I know what it felt like to be marched into the woods, expecting to die. I know what it felt like to be plotting my escape. I know what it was like to make the attempt, expecting to be shot in the back at any second.

Those are the type of things that stick. The stuff that’s not relevant to survival doesn’t. Because at the time, you’re totally focused on survival.

And this is why the alleged “inconsistencies” in Dr. Ford’s story don’t matter. If you’ve not seen your own version of those bullets staring at you, it’s hard to understand how the urgency of the moment affects your perceptions of some details…and how strongly others are seared into your brain.