Category: reason

The U.S. Economy Grew by an Astonishing 33% in the Third Quarter. That’s Still Not Enough To Reverse COVID-19’s Damage.

iiphotos007692

Data released Thursday morning show that the U.S. economy has experienced record-breaking growth during the past three months, but also reveal that the country has a long way to go to get out of the hole created by the COVID-19 pandemic.

The Department of Commerce’s preliminary estimate of third-quarter gross domestic product growth, the last major economic report to be released before the presidential election on Nov. 3, estimates that the economy grew by 33.1 percent from July through September. That comes after a stunning 31.4 percent contraction in the previous three months—during which much of the country was paralyzed by coronavirus-related economic shutdowns.

Both those figures are a bit misleading. Because the federal government reports GDP figures in “annualized” terms, outlier quarterly numbers end up being exaggerated. “What actually happened was that activity in April–June was 9% lower than in January–March, which in turn was about 1% lower than in October–December of 2019,” explains Barron’s. “To be clear, the coronavirus contraction was catastrophic and without precedent in its combination of speed or severity. But it wasn’t equivalent to losing a third of the economy for months at a time.”

The same thing is happening in reverse now. There’s no doubt that the economy has bounced back as lockdowns have lifted and businesses have reopened in recent months, but the data does not indicate a full recovery.

Economists for JPMorgan, an investment bank, note that the economy remains about 3 percent smaller than it was at the end of last year. And while the unemployment rate is falling after hitting a peak of 14.7 percent earlier this year, there are millions of Americans still out of work due to the pandemic.

Thursday’s report will serve as fodder for both President Donald Trump and former Vice President Joe Biden as they make their closing pitches to voters in the presidential campaign’s final week.

Trump has been talking for weeks about “turning the corner” in the fight against COVID-19, and will likely use Thursday’s grandiose topline number to press that case. Biden will be able to point to the fact that, even after such a strong quarter of growth, the economy remains smaller than it was earlier this year.

And with COVID-19 cases and hospitalizations on the rise—as well as renewed lockdowns taking place in Europe and some U.S. states—it is clear that the pandemic is not yet done wreaking havoc with the economy. Thursday’s data release contains undeniably good news, but we’re not out of the woods yet.

FREE MINDS

Kevin D. Williamson, National Review‘s libertarian-sympathizing curmudgeon, interrogates the case for reelecting Trump and finds it wanting. The best parts of the Trump administration, for conservatives, have been the things the president has had the least to do with, he argues:

Trump’s principal success has been as a rubber stamp to the very “establishment” at which Trump and his admirers like to sneer. In the matter of judges, that establishment is instantiated by the Heritage Foundation — which simply gave Trump a list of good judicial candidates, while Trump, always happy to let someone else do his homework for him, has stuck with it. …

Trump signed off on a tax plan that has some good elements, but the so-called Trump tax cuts were largely the work of Mr. Establishment, Paul Ryan — and they ran contrary to the personal preferences and rhetoric of the president, who spent much of the campaign bellyaching about Wall Street fat cats not paying as much in taxes as he thinks they should.  Trump’s regulatory reform efforts have been designed and implemented by Bushies such as Neomi Rao (now a federal judge) and her former deputies.

Which is to say, the Trump administration has succeeded most where Trump has the least to do with it. The nat-pops may turn up their noses at “Conservative Inc.” but that is who has delivered such benefits as we have received from the Trump administration. All Peter Navarro and the rest of those crackpots has done is bankrupt a lot of farmers and drive up the expenses of beer brewers and manufacturers.

Patriotism, Williamson concludes, means not merely voting for “one pack of jackals because it looks a little less hungry and vicious than the other pack of jackals,” but demanding “that the free and self-governing men and women of this struggling republic deserve better than what is on offer.”

FREE MARKETS

Days after winning the 2016 election, the president-elect persuaded air conditioning manufacturer Carrier not to close an Indiana plant. This was made possible by $7 million in state-level subsidies.

Four years later, how are things working out? The Washington Post takes a look:

This year alone, Indiana employers have sent more jobs to Mexico, China, India and other foreign countries than were saved at Carrier. Without headlines or presidential notice, at least 17 companies — names like Vibracoustic, Molnlycke Health Care, Allura, Altex, Stanley Black & Decker, Dometic, Johnson Controls and Horizon Terra — have closed plants or otherwise reduced employment in Indiana and moved jobs abroad, according to U.S. Department of Labor filings.

As I wrote back in January 2017, it wasn’t a lack of presidential attention that was driving Carrier to relocate jobs to other countries—it was onerous and expensive regulations. “Those same regulations could push other companies to do the same—the ‘deal’ that saved those 1,000 [Carrier] jobs in Indianapolis did nothing to make life easier for other, similar businesses.” Indeed, it seems they have.

ELECTION 2020

Are dead people going to swing the election by voting with mail-in ballots? Probably not.

QUICK HITS

  • The Girl Scouts of America tweeted—and then quickly deleted—a supposedly anodyne statement congratulating Amy Coney Barrett on her Supreme Court confirmation. Of course, now right-wingers want to cancel the Girl Scouts for caving to silly left-wing criticism of an inoffensive tweet, because there is no bottom to the ridiculousness of the culture wars.

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via IFTTT

The U.S. Economy Grew by an Astonishing 33% in the Third Quarter. That’s Still Not Enough To Reverse COVID-19’s Damage.

iiphotos007692

Data released Thursday morning show that the U.S. economy has experienced record-breaking growth during the past three months, but also reveal that the country has a long way to go to get out of the hole created by the COVID-19 pandemic.

The Department of Commerce’s preliminary estimate of third-quarter gross domestic product growth, the last major economic report to be released before the presidential election on Nov. 3, estimates that the economy grew by 33.1 percent from July through September. That comes after a stunning 31.4 percent contraction in the previous three months—during which much of the country was paralyzed by coronavirus-related economic shutdowns.

Both those figures are a bit misleading. Because the federal government reports GDP figures in “annualized” terms, outlier quarterly numbers end up being exaggerated. “What actually happened was that activity in April–June was 9% lower than in January–March, which in turn was about 1% lower than in October–December of 2019,” explains Barron’s. “To be clear, the coronavirus contraction was catastrophic and without precedent in its combination of speed or severity. But it wasn’t equivalent to losing a third of the economy for months at a time.”

The same thing is happening in reverse now. There’s no doubt that the economy has bounced back as lockdowns have lifted and businesses have reopened in recent months, but the data does not indicate a full recovery.

Economists for JPMorgan, an investment bank, note that the economy remains about 3 percent smaller than it was at the end of last year. And while the unemployment rate is falling after hitting a peak of 14.7 percent earlier this year, there are millions of Americans still out of work due to the pandemic.

Thursday’s report will serve as fodder for both President Donald Trump and former Vice President Joe Biden as they make their closing pitches to voters in the presidential campaign’s final week.

Trump has been talking for weeks about “turning the corner” in the fight against COVID-19, and will likely use Thursday’s grandiose topline number to press that case. Biden will be able to point to the fact that, even after such a strong quarter of growth, the economy remains smaller than it was earlier this year.

And with COVID-19 cases and hospitalizations on the rise—as well as renewed lockdowns taking place in Europe and some U.S. states—it is clear that the pandemic is not yet done wreaking havoc with the economy. Thursday’s data release contains undeniably good news, but we’re not out of the woods yet.

FREE MINDS

Kevin D. Williamson, National Review‘s libertarian-sympathizing curmudgeon, interrogates the case for reelecting Trump and finds it wanting. The best parts of the Trump administration, for conservatives, have been the things the president has had the least to do with, he argues:

Trump’s principal success has been as a rubber stamp to the very “establishment” at which Trump and his admirers like to sneer. In the matter of judges, that establishment is instantiated by the Heritage Foundation — which simply gave Trump a list of good judicial candidates, while Trump, always happy to let someone else do his homework for him, has stuck with it. …

Trump signed off on a tax plan that has some good elements, but the so-called Trump tax cuts were largely the work of Mr. Establishment, Paul Ryan — and they ran contrary to the personal preferences and rhetoric of the president, who spent much of the campaign bellyaching about Wall Street fat cats not paying as much in taxes as he thinks they should.  Trump’s regulatory reform efforts have been designed and implemented by Bushies such as Neomi Rao (now a federal judge) and her former deputies.

Which is to say, the Trump administration has succeeded most where Trump has the least to do with it. The nat-pops may turn up their noses at “Conservative Inc.” but that is who has delivered such benefits as we have received from the Trump administration. All Peter Navarro and the rest of those crackpots has done is bankrupt a lot of farmers and drive up the expenses of beer brewers and manufacturers.

Patriotism, Williamson concludes, means not merely voting for “one pack of jackals because it looks a little less hungry and vicious than the other pack of jackals,” but demanding “that the free and self-governing men and women of this struggling republic deserve better than what is on offer.”

FREE MARKETS

Days after winning the 2016 election, the president-elect persuaded air conditioning manufacturer Carrier not to close an Indiana plant. This was made possible by $7 million in state-level subsidies.

Four years later, how are things working out? The Washington Post takes a look:

This year alone, Indiana employers have sent more jobs to Mexico, China, India and other foreign countries than were saved at Carrier. Without headlines or presidential notice, at least 17 companies — names like Vibracoustic, Molnlycke Health Care, Allura, Altex, Stanley Black & Decker, Dometic, Johnson Controls and Horizon Terra — have closed plants or otherwise reduced employment in Indiana and moved jobs abroad, according to U.S. Department of Labor filings.

As I wrote back in January 2017, it wasn’t a lack of presidential attention that was driving Carrier to relocate jobs to other countries—it was onerous and expensive regulations. “Those same regulations could push other companies to do the same—the ‘deal’ that saved those 1,000 [Carrier] jobs in Indianapolis did nothing to make life easier for other, similar businesses.” Indeed, it seems they have.

ELECTION 2020

Are dead people going to swing the election by voting with mail-in ballots? Probably not.

QUICK HITS

  • The Girl Scouts of America tweeted—and then quickly deleted—a supposedly anodyne statement congratulating Amy Coney Barrett on her Supreme Court confirmation. Of course, now right-wingers want to cancel the Girl Scouts for caving to silly left-wing criticism of an inoffensive tweet, because there is no bottom to the ridiculousness of the culture wars.

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via IFTTT

A Game Changer for Zoom Classes: Live Transcription by Otter.ai

During class, students will often type everything a professors says. This sort of rote stenography is very, very ineffective. First, students have to focus so hard on capturing every word that they seldom think about what is being said. Second, verbatim notes are usually ineffective. Students do not have time to re-read the entire class from scratch. Third, students in transcription mode may not think of important questions in the moment. The most important element of class is the ability to ask questions.

Many professors have banned laptops, for among other reasons, to force students to take careful handwritten notes. But without a laptop, students may feel that their outlines are lacking. To remedy this deficiency, some professors will appoint a student as the designated note taker for a given class. He or she can use a laptop, and then share notes with the entire class. With this approach, students can still obtain a detailed class outline, but still have time to actually pay attention. I’ve always been skeptical of this approach. I would never trust someone else to prepare my outline. Not because I do not trust him or her. But because I have a very idiosyncratic way of learning that likely does not fit how others learn.

Since I started teaching in 2012, I have live-streamed all of my classes to YouTube. I’ve told students they do not need to type everything I say. They can simply fill in gaps in their notes later. This approach has worked well enough.

Now, I’ve discovered a game-changer. It is possible to automatically transcribe a Zoom call in real-time. Yes. As you speak, closed captions are generated. And, a running transcript is created that students can access during, or after class. The software is known as Otter.AI. And it now interacts with Zoom.

The easiest way to understand how this software works is to review a transcript. Here is a link to my ConLaw class from Wednesday. Click it. I’ll wait. Welcome back.

This transcript was generated in real time as the class progressed. Otter can separate when I am speaking, and when a student is speaking. You can quickly search the transcript for key words. And if you click on any part of the transcript, it automatically starts playing the audio. You can also play the audio at different speeds, and even skip the empty spaces with no sound.

My students absolutely loved the technology. First, this system eliminates the need to transcribed lectures verbatim. That was never a good use of the time. Now, students can pay closer attention, without the fear that they will miss something. Second, many students are visual learners. Seeing the words on the screen as I say them reinforces the message. Third, it becomes very easy to review a lecture after class. Students can jump to a specific portion to review what was said. There is no easy way to do this on YouTube, without scrolling around. To that end, I have converted my entire YouTube library to Otter. Now, the entire semester is searchable.

Not every professor will value this tool. Students could use this tool to slack off, and not take any notes. I’m not so concerned. If a student is willing to put minimal effort into their notes, then whatever they are doing now is probably a waste of time. I often review student outlines. The quality varies wildly. I think this sort of technology would free a student from the robo-type mode, and could allow them to pay closer attention. And, in theory, a professor who bans laptops can feel more comfortable that nothing is being missed.

Still, I suspect that some professors will fear the Otter. They will resist  this sort of tool if offered. Well, that resistance won’t really help. Students can purchase their own Otter accounts for about $10 month. They can run the app on their phones or desktops during class. And create their own outlines. Of course, professors can ban these recordings. But let’s be frank: you can’t stop the signal. So embrace the signal.

The professional plan costs $30 a month, and allows you to transcribe up to 100 hours of content a month. The configuration process is straightforward. It took me about 10 minutes to set up. My IT Department was gracious enough to give me access to the cloud server recording settings. Not everyone may get those privileges. But colleges should look into this system.

If you have any questions, please email me. I’m happy to provide any feedback or assistance.

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via IFTTT

A Game Changer for Zoom Classes: Live Transcription by Otter.ai

During class, students will often type everything a professors says. This sort of rote stenography is very, very ineffective. First, students have to focus so hard on capturing every word that they seldom think about what is being said. Second, verbatim notes are usually ineffective. Students do not have time to re-read the entire class from scratch. Third, students in transcription mode may not think of important questions in the moment. The most important element of class is the ability to ask questions.

Many professors have banned laptops, for among other reasons, to force students to take careful handwritten notes. But without a laptop, students may feel that their outlines are lacking. To remedy this deficiency, some professors will appoint a student as the designated note taker for a given class. He or she can use a laptop, and then share notes with the entire class. With this approach, students can still obtain a detailed class outline, but still have time to actually pay attention. I’ve always been skeptical of this approach. I would never trust someone else to prepare my outline. Not because I do not trust him or her. But because I have a very idiosyncratic way of learning that likely does not fit how others learn.

Since I started teaching in 2012, I have live-streamed all of my classes to YouTube. I’ve told students they do not need to type everything I say. They can simply fill in gaps in their notes later. This approach has worked well enough.

Now, I’ve discovered a game-changer. It is possible to automatically transcribe a Zoom call in real-time. Yes. As you speak, closed captions are generated. And, a running transcript is created that students can access during, or after class. The software is known as Otter.AI. And it now interacts with Zoom.

The easiest way to understand how this software works is to review a transcript. Here is a link to my ConLaw class from Wednesday. Click it. I’ll wait. Welcome back.

This transcript was generated in real time as the class progressed. Otter can separate when I am speaking, and when a student is speaking. You can quickly search the transcript for key words. And if you click on any part of the transcript, it automatically starts playing the audio. You can also play the audio at different speeds, and even skip the empty spaces with no sound.

My students absolutely loved the technology. First, this system eliminates the need to transcribed lectures verbatim. That was never a good use of the time. Now, students can pay closer attention, without the fear that they will miss something. Second, many students are visual learners. Seeing the words on the screen as I say them reinforces the message. Third, it becomes very easy to review a lecture after class. Students can jump to a specific portion to review what was said. There is no easy way to do this on YouTube, without scrolling around. To that end, I have converted my entire YouTube library to Otter. Now, the entire semester is searchable.

Not every professor will value this tool. Students could use this tool to slack off, and not take any notes. I’m not so concerned. If a student is willing to put minimal effort into their notes, then whatever they are doing now is probably a waste of time. I often review student outlines. The quality varies wildly. I think this sort of technology would free a student from the robo-type mode, and could allow them to pay closer attention. And, in theory, a professor who bans laptops can feel more comfortable that nothing is being missed.

Still, I suspect that some professors will fear the Otter. They will resist  this sort of tool if offered. Well, that resistance won’t really help. Students can purchase their own Otter accounts for about $10 month. They can run the app on their phones or desktops during class. And create their own outlines. Of course, professors can ban these recordings. But let’s be frank: you can’t stop the signal. So embrace the signal.

The professional plan costs $30 a month, and allows you to transcribe up to 100 hours of content a month. The configuration process is straightforward. It took me about 10 minutes to set up. My IT Department was gracious enough to give me access to the cloud server recording settings. Not everyone may get those privileges. But colleges should look into this system.

If you have any questions, please email me. I’m happy to provide any feedback or assistance.

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via IFTTT

Applying the Citizenship Clause’s Original Meaning to Modern Controversies

This is my fourth guest-post (of five) about my forthcoming article Originalism and Birthright Citizenship. My previous post concluded that the original meaning of the Fourteenth Amendment’s citizenship clause, which requires birth “subject to the jurisdiction” of the United States, included people born in U.S. territory other than children of diplomats, foreign armies and (at the time) tribal Native Americans. This has implications for two modern controversies.

First, U.S-born children of aliens lawfully in the U.S. are birthright citizens under the original meaning. The Supreme Court so held in United States v. Wong Kim Ark (1898) as to children of lawful permanent residents, using an original meaning analysis similar to mine. Wong Kim Ark, limited to its facts, doesn’t decide the status of children of lawful temporary visitors. But alien permanent residents and temporary visitors stand in the same position as to the relevant language: they are “subject to the jurisdiction” of the United States (that is, governed by U.S. law) to the same extent. As noted, Chief Justice Marshall specifically described U.S. jurisdiction over temporary visitors in the Schooner Exchange case, and the citizenship of the children of temporary visitors was confirmed in the 1844 New York state case Lynch v. Clarke. If the drafters had sought to exclude children of temporary visitors, they would have used different and more explicit language.

Children of aliens not lawfully present in the U.S. may seem a more difficult issue. There were essentially no such people in 1866-1868 (because there were no federal immigration laws), and there’s no evidence the enactors considered the matter. How can we say the clause covers them if the enactors didn’t know about them?

This objection misunderstands original meaning analysis. The inquiry isn’t what the enactors thought (or would have thought) about a particular modern issue. The inquiry is (a) what rule does the enactment’s original meaning establish, and (b) how does that rule resolve modern questions.

I’ve argued that the original meaning establishes a rule of citizenship by birth in U.S. territory, excluding people not governed by U.S. law. Applied to the question of U.S.-born children of undocumented migrants, that rule is clear. They are governed by U.S. law while in the U.S., in the same manner as other non-diplomat aliens; put another way, unlike people in diplomatic households, they have no immunity from U.S. territorial jurisdiction. That’s all we need to know to apply the original meaning.

Now I’ll turn to some counterarguments, starting with Peter Schuck and Rogers Smith’s well-argued book Citizenship without Consent. Invoking natural law writers such as John Locke and Jean-Jacques Burlamaqui, Schuck and Smith argued that citizenship, constituting membership in a national community, arises from mutual consent of the individual and the sovereign (representing the community). And if citizenship depends on consent, only those whom the sovereign admitted to the political polity could be citizens.

While this argument may or may not be attractive as a policy matter (or as a matter of living constitutionalism), it is not an original meaning argument. It posits that children of undocumented migrants are different in their relationship to the national polity in various ways, but not that they are born outside U.S. jurisdiction, in the original meaning of that word.

A better original meaning counterargument is that the Supreme Court, four years after ratification, disagreed with me. In the Slaughter House Cases, Justice Miller wrote for the Court that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from [the clause’s] operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Ordinarily a near-contemporaneous post-ratification interpretation would carry considerable weight.

But I don’t find it persuasive here. The case had nothing to do with the citizenship clause. Miller didn’t explain how he reached his conclusion, and in particular he didn’t explain how the clause’s text allowed it. Nor did he consider the drafting history, which as discussed seems to show the contrary. When the issue actually reached the Court in Wong Kim Ark, the Justices dismissed Miller’s comment as dicta that hadn’t been adequately supported. Miller wasn’t the only person in the post-ratification era to take a narrow view of the clause, but other commentaries had a similar defect of not explaining how the text compelled their preferred outcome. Post-ratification commentary can be persuasive in original meaning analysis, but only when it provides an explanation of the meaning, not when it simply claims a result.

Modern scholars such as John Eastman and Michael Anton have attempted an explanation of the original meaning based on an idea of partial versus complete or exclusive jurisdiction. In a recent essay, Eastman argues that the clause “meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily in the United States.” His earlier writing connects this distinction to the idea of allegiance: jurisdiction arose from allegiance, and aliens owe their principal allegiance to their home countries, not the U.S. Similarly, Anton argues that the clause requires a person to be subject to exclusive U.S. jurisdiction (which U.S.-born children of aliens typically are not).

I think these arguments fail on at least two grounds. First, they add words to the clause or invent distinctions that aren’t supported in pre-enactment usage. Anton is right that aliens aren’t subject to exclusive U.S. jurisdiction, but the clause doesn’t require exclusive jurisdiction. Aliens in the U.S. (other than diplomats and armies) are subject to concurrent jurisdiction of the U.S. and their home countries. Eastman is right that jurisdiction could arise either permanently from membership in a nation or temporarily from presence in sovereign territory. But the clause doesn’t distinguish between the two sources of jurisdiction. Eastman and Anton want to rewrite the clause to capture a distinction it doesn’t contain.

The Eastman/Anton argument is problematic for another reason. Though focused on temporary visitors and undocumented migrants, it would (as I think they concede) also exclude U.S.-born children of alien permanent residents. But before the Fourteenth Amendment, these children were U.S. citizens under common law. The clause’s drafters repeatedly claimed their proposal constitutionalized existing law, and it’s hard to understand why they would have endorsed such a sharp departure. Moreover, as I’ve discussed, this issue came up in the drafting debates in the exchange between Senators Conness and Cowan, who both declared that the clause covered U.S.-born children of Chinese immigrants (see here, pp. 2890-91). No Senator disputed that reading.

Anton and Eastman offer some general statements from the drafting history in support. (I discuss them in detail in Part II.B of the article). At best, they are subject to varying interpretations, and in any event don’t overcome the central propositions that (a) the clause’s text says “jurisdiction” without limits to type of jurisdiction and (b) the drafters understood the language to include U.S.-born children of immigrants. These points confirm the original meaning I’ve outlined: that everyone born in U.S. territory is “subject to the jurisdiction” of the U.S. in the clause’s meaning, except those who had immunity from U.S. law.

All this does, though, is to establish the original meaning. It does not say we should follow the original meaning. In my next post, I’ll take up that question in the context of the citizenship clause. Specifically, if the clause’s enactors didn’t realize that the clause would guarantee citizenship to children of undocumented migrants (or to children born in overseas territories), why should we (even if we are originalists) feel bound to that result today?

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Applying the Citizenship Clause’s Original Meaning to Modern Controversies

This is my fourth guest-post (of five) about my forthcoming article Originalism and Birthright Citizenship. My previous post concluded that the original meaning of the Fourteenth Amendment’s citizenship clause, which requires birth “subject to the jurisdiction” of the United States, included people born in U.S. territory other than children of diplomats, foreign armies and (at the time) tribal Native Americans. This has implications for two modern controversies.

First, U.S-born children of aliens lawfully in the U.S. are birthright citizens under the original meaning. The Supreme Court so held in United States v. Wong Kim Ark (1898) as to children of lawful permanent residents, using an original meaning analysis similar to mine. Wong Kim Ark, limited to its facts, doesn’t decide the status of children of lawful temporary visitors. But alien permanent residents and temporary visitors stand in the same position as to the relevant language: they are “subject to the jurisdiction” of the United States (that is, governed by U.S. law) to the same extent. As noted, Chief Justice Marshall specifically described U.S. jurisdiction over temporary visitors in the Schooner Exchange case, and the citizenship of the children of temporary visitors was confirmed in the 1844 New York state case Lynch v. Clarke. If the drafters had sought to exclude children of temporary visitors, they would have used different and more explicit language.

Children of aliens not lawfully present in the U.S. may seem a more difficult issue. There were essentially no such people in 1866-1868 (because there were no federal immigration laws), and there’s no evidence the enactors considered the matter. How can we say the clause covers them if the enactors didn’t know about them?

This objection misunderstands original meaning analysis. The inquiry isn’t what the enactors thought (or would have thought) about a particular modern issue. The inquiry is (a) what rule does the enactment’s original meaning establish, and (b) how does that rule resolve modern questions.

I’ve argued that the original meaning establishes a rule of citizenship by birth in U.S. territory, excluding people not governed by U.S. law. Applied to the question of U.S.-born children of undocumented migrants, that rule is clear. They are governed by U.S. law while in the U.S., in the same manner as other non-diplomat aliens; put another way, unlike people in diplomatic households, they have no immunity from U.S. territorial jurisdiction. That’s all we need to know to apply the original meaning.

Now I’ll turn to some counterarguments, starting with Peter Schuck and Rogers Smith’s well-argued book Citizenship without Consent. Invoking natural law writers such as John Locke and Jean-Jacques Burlamaqui, Schuck and Smith argued that citizenship, constituting membership in a national community, arises from mutual consent of the individual and the sovereign (representing the community). And if citizenship depends on consent, only those whom the sovereign admitted to the political polity could be citizens.

While this argument may or may not be attractive as a policy matter (or as a matter of living constitutionalism), it is not an original meaning argument. It posits that children of undocumented migrants are different in their relationship to the national polity in various ways, but not that they are born outside U.S. jurisdiction, in the original meaning of that word.

A better original meaning counterargument is that the Supreme Court, four years after ratification, disagreed with me. In the Slaughter House Cases, Justice Miller wrote for the Court that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from [the clause’s] operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Ordinarily a near-contemporaneous post-ratification interpretation would carry considerable weight.

But I don’t find it persuasive here. The case had nothing to do with the citizenship clause. Miller didn’t explain how he reached his conclusion, and in particular he didn’t explain how the clause’s text allowed it. Nor did he consider the drafting history, which as discussed seems to show the contrary. When the issue actually reached the Court in Wong Kim Ark, the Justices dismissed Miller’s comment as dicta that hadn’t been adequately supported. Miller wasn’t the only person in the post-ratification era to take a narrow view of the clause, but other commentaries had a similar defect of not explaining how the text compelled their preferred outcome. Post-ratification commentary can be persuasive in original meaning analysis, but only when it provides an explanation of the meaning, not when it simply claims a result.

Modern scholars such as John Eastman and Michael Anton have attempted an explanation of the original meaning based on an idea of partial versus complete or exclusive jurisdiction. In a recent essay, Eastman argues that the clause “meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily in the United States.” His earlier writing connects this distinction to the idea of allegiance: jurisdiction arose from allegiance, and aliens owe their principal allegiance to their home countries, not the U.S. Similarly, Anton argues that the clause requires a person to be subject to exclusive U.S. jurisdiction (which U.S.-born children of aliens typically are not).

I think these arguments fail on at least two grounds. First, they add words to the clause or invent distinctions that aren’t supported in pre-enactment usage. Anton is right that aliens aren’t subject to exclusive U.S. jurisdiction, but the clause doesn’t require exclusive jurisdiction. Aliens in the U.S. (other than diplomats and armies) are subject to concurrent jurisdiction of the U.S. and their home countries. Eastman is right that jurisdiction could arise either permanently from membership in a nation or temporarily from presence in sovereign territory. But the clause doesn’t distinguish between the two sources of jurisdiction. Eastman and Anton want to rewrite the clause to capture a distinction it doesn’t contain.

The Eastman/Anton argument is problematic for another reason. Though focused on temporary visitors and undocumented migrants, it would (as I think they concede) also exclude U.S.-born children of alien permanent residents. But before the Fourteenth Amendment, these children were U.S. citizens under common law. The clause’s drafters repeatedly claimed their proposal constitutionalized existing law, and it’s hard to understand why they would have endorsed such a sharp departure. Moreover, as I’ve discussed, this issue came up in the drafting debates in the exchange between Senators Conness and Cowan, who both declared that the clause covered U.S.-born children of Chinese immigrants (see here, pp. 2890-91). No Senator disputed that reading.

Anton and Eastman offer some general statements from the drafting history in support. (I discuss them in detail in Part II.B of the article). At best, they are subject to varying interpretations, and in any event don’t overcome the central propositions that (a) the clause’s text says “jurisdiction” without limits to type of jurisdiction and (b) the drafters understood the language to include U.S.-born children of immigrants. These points confirm the original meaning I’ve outlined: that everyone born in U.S. territory is “subject to the jurisdiction” of the U.S. in the clause’s meaning, except those who had immunity from U.S. law.

All this does, though, is to establish the original meaning. It does not say we should follow the original meaning. In my next post, I’ll take up that question in the context of the citizenship clause. Specifically, if the clause’s enactors didn’t realize that the clause would guarantee citizenship to children of undocumented migrants (or to children born in overseas territories), why should we (even if we are originalists) feel bound to that result today?

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