Soundbites

One more reason Kim Davis is not going to be a martyr:  she's lost FoxNews.

And one more reason we should revive the study of Classics (if J.K. Rowling wasn't proof enough):  so we stop reinventing the wheel (people with excessive overconfidence tend to succeed?  The Greeks taught us that 2500 years ago.  Yes, they may also fail spectacularly, but success and failure are inextricably linked.).

To complete the triad, we recall that politics is the means by which people resolve their difference within an institution, be that government or church.  And we learn, once again, that yes, the Roman Catholic Church also embodies politics.  What's interesting is how much the discussion within the Vatican on what is "true Church teaching" resembles discussions in America on what is "true Constitutional interpretation," complete with appeals to the "Founding Fathers" (who were no more of one mind than we are today) and the certainty that there is only one Church teaching for any given subject (or at least of the "important" ones, whatever they are).

"But Sordello and my Sordello?"

Practicing law like a 3 year old with a loaded gun

Mmmmmmm...fresher* donuts!

NTodd beat me to it, but there's still some choice stuff here:

Kim Davis, the Kentucky clerk who's refused to issue same-sex marriage licenses, on Monday asked the Kentucky governor to immediately free her from jail, according to court documents obtained by CNN.

"We would like them to release her from jail and provide reasonable, sensible accommodation so she can do her job," one of her lawyers, Horatio Mihet, said in a statement. "That would be taking her name off of marriage licenses in Rowan County and allowing her deputies to issue the licenses."

Kentucky Gov. Steve Beshear's office said Monday he won't respond, noting that the conflict was a "matter between her and the courts."

At this point Kim Davis would be better off pro se (representing herself).  These guys are morons.  Worse than that, they are a positive danger to their client.  What, they might have a legal argument?  First, I would remind the Court that these are the legal geniuses that said the clerk has to sign marriage licenses or they are void.  Not, however, according to the Rowan County Attorney. (Or according to the license itself; see comments below.)

So now we have this "legal opinion:"

One of Davis's lawyers, Mat Staver, founder and chariman of Liberty Counsel, said Beshear could issue an executive order to solve the problem.

It's my understanding that the duties of the County Clerk, an elected office, are set by statutes, so I'm gonna go out on a limb here and say:  No, the governor of Kentucky can't do that.  But apparently that's what her lawyers have been telling her, because her husband last Friday spilled the beans:

Staver said Davis has no plans to resign and would remain in jail until a compromise is reached. He said his client would be willing to issue licenses if her name and title were not on them.

Davis' husband, Joe, told reporters Friday that his wife was willing to stay in jail until that proposed compromise happened.

"As long as it takes," Joe Davis said. "Hopefully (Kentucky Gov. Steve) Beshear will haave the guts to do his job."

I'd been wondering what Gov. Beshear had to do with this; now I think I know.

Which brings me back to my original aassessment of the plight of Kim Davis.  I've wanted to be somewhat gracious to her lawyers and think they were either making a legal argument in good faith, or just, as a retired judge once put it, "preaching it round and square."  But I've decided they are venal idiots committing malpractice as publicly as I've ever seen it done.  Mat Staver is a man in a round room trying to find the corner to sit in.  Problem is, he's got his client with him.

*WEEKEND UPDATE:  And it turns out it's worse than I thought.  Davis' lawyers didn't make any appeal to Bashear; they've filed an appeal with the 6th Circuit Court of Appeals asking the Court to issue an emergency injunction against Bashear's statement to all Kentucky County Clerks that they comply with the Obergefell decision.  So now it's the governor's fault that Kim Davis is in jail!

I can think of a fairly large number of objections to this pleading, but the main one is:  this is the argument they tried once before, and it was already rejected.  What they want is some reason for Kim Davis not to have to comply with Obergefell.  What they have, is the same argument over and over.  Time to change the record, fellas.

So, three things: Kim Davis isn't getting rich off of this anytime soon (the story is turning into her pathetic legal case, not her heroic martyrdom); her lawyers are committing malpractice in a way I truly never thought I'd see; and the federal courts are going to lost patience with them any day now.

I've seen pro se defendants with more legal sense than this team of lawyers has.

Time to follow the money

Rowan County Senior High School Band.  I dunno; I just like high school bands.

This has now turned into farce:

With Rowan County Clerk Kim Davis in jail on civil contempt charges for defying a judge's order to resume issuing licenses, deputy clerk Brian Mason ended the office's two-month license ban by politely serving Yates and Smith on Friday, even congratulating them and shaking their hands afterward.

Hours later, however, attorneys for Davis said the marriage licenses issued by her office Friday were void because only Davis has the authority to authorize a marriage license and she refuses to do so.

"They are not being issued under the authority of the Rowan County clerk's office. They are not worth the paper that they are written on," said attorney Mat Staver after meeting with Davis in the Carter County jail in Grayson.

Rowan County Attorney Cecil Watkins has previously dismissed that argument, saying deputy clerks can issue valid marriage licenses without the approval of their boss.

Marriage equality protesters shouted "Love won!" outside the Rowan County courthouse as Yates and Smith emerged. Across the sidewalk, a crowd of people who support Kim Davis stood mutely, save for one man screaming quotes from the Bible about Sodom and Gomorrah.

Do they think they're scaring people with that line?  Do they plan to sue them for living in sin?  Do they imagine this is really a 40's madcap comedy (marriage and bigamy are surprisingly common topics in '40's comedies.  Somebody oughta do a study....)?

These are the legal geniuses who lost their case from the trial court to the Supreme Court, and now they threaten not only to appeal the contempt charge (good luck with that, fellas!), but want to put the fear of their God into people coming to Rowan County to get marriage licenses, not all of whom have to be gay (since Davis, for some reason, was refusing to issue any licenses, under the mistaken impression it would protect her from a charge of discrimination.*).  And now they think nobody involved in this case, including the federal judge, knows the law of Kentucky except them?

Really, this is just ridiculous now.  I'm honestly wondering if the voters of Rowan County want to pay a clerk a salary to sit in jail.  That may be the real reason she refuses to quit her job.  Wonder if it will become the reason she gets removed from her job?

*Neither federal law nor Kentucky law recognizes homosexuality as a protected class for civil rights purposes, so you can discriminate against homosexuals in Kentucky with abandon.  What you can't do is ignore a court order.

The Wit and Wisdom of a former Cowboys Quarterback

It's worth noting Kim Davis seldom said much in her defense; mostly she hid in her office, away from cameras and reporters and people demanding marriage licenses (which she refused to issue on some confused notion that not issuing any at all was a "Get Out of Jail Free" card because she was not discriminating against gays, which is not illegal in Kentucky).

And now her husband is speaking for her:

Joe Davis said that he plans to travel to confront Kentucky Gov. Steve Beshear (D), who has refused to call a special legislative session to address marriage licenses for gay couples, according to The Courier-Journal.

"You ain't no governor because you have no backbone," he said of Beshear.

He has also criticized U.S. District Judge David Bunning, who ordered Kim Davis to jail on Thursday.

"Bunning cannot bully me, my wife or my son," Joe Davis said on Friday, according to Louisville television station WDRB. "I taught my son how to stand up for what's right and what he believes in at any cost. Bunning doesn't know how to pick on somebody that can handle him. The only thing he
knows how to do is to pick up on the weak people."

On Thursday, after his wife was sent to jail, Davis told a New York Times reporter, "Tell Judge Bunning ... he’s a butt."

This is what's going to launch a thousand internet funding efforts and land Kim Davis a job as a commentator on Fox News?

Besides, marriage licenses are already flowing from the Rowan County clerks' office; so why, again, do we care that Kim Davis won't let herself out of jail?  And her husband's comments are a sharp contrast to the actions of Ms. Davis herself:

Davis stood and thanked Bunning after he ordered her to jail, pausing briefly to search the crowded courtroom for familiar faces before she was led away.

Turn out the lights, the party's over.....

Nope.

I've seen this argument already in comments at Salon:  that Kim Davis gets rich and famous now because she's a "martyr" in jail for her "sincerely held religious beliefs."

I respectfully dissent.

First, Kim Davis is not Sarah Palin, which is to simply say, she doesn't look anything like Tina Fey.  Sorry, but being attractive matters, especially for instant celebrity.  She resembles the mother (I know she has a name, but I never watched the show) of Honey Boo Boo, a show people watched because it was a train wreck and the characters on there were so bizarre as to be almost interesting.

Nobody's watching Honey Boo Boo anymore; that ship has sailed.

Nor is she eloquent.  The report from the courtroom today had her answering briefly the questions put to her, until she spoke about her religious beliefs.  She speaks from the heart about her religious beliefs, but she sounds like people I grew up with, people as nondescript and otherwise uninteresting as Kim Davis.  Nothing against Ms. Davis personally, and I won't join in comments on her appearance or her marital history; but she's not a charismatic person who's going to excite interest for very long.  She's ordinary; she's not electrifying.  She's a symbol, which is how she's being treated by her lawyers.  But she's not an interesting person with something to say.

She's a woman who suddenly found herself on the world stage, and she seems to still be blinking in the klieg lights.  Now she's going away for what could be as long as three years.  Courts don't generally imprison people for contempt for years on end, but that's the outside number on this issue, as she doesn't come up for re-election until 2018.  I don't know the law in Kentucky, but it may be the office can't issue marriage licenses without the signature of the elected clerk, and unless there's some provision to declare her unable to complete her duties, there's nothing to keep her from blocking the issuance of marriage licenses in Rowan County until 2018.*

There are no cameras in jail, and no microphones.  More to the point, Ms. Davis hasn't sought out the cameras and microphones.  Reports are that recently she's been hiding in her office, coming out briefly to address crowds of people, and then retreating behind closed doors again.  She isn't seeking the spotlight now, and she won't command it from a jail cell.

Her lawyers and "supporters" may try to make a martyr of her, but I think they'll find they have no raw material to work with.  She isn't a particularly sympathetic character (my sympathies are with her because she reminds me of people I've known all my life.  I have no sympathy for her stubbornness that put her in jail, and I think she expected things to go differently when she started this.), and she won't become more so when she's once again locked away from public view, a public view she's never really tried to exploit.

Other people can only exploit someone for their own publicity for so long, and then they have to move on.  Ms. Davis' 15 minutes are down to about their last five.**

*There is undoubtedly some provision in KY Law that will eventually replace Ms. Davis and get the work of the county flowing again.  Or it may be pressure simply builds on her to resign because the entire county can't come to a halt while she serves her martyrdom in jail.

**The problem with commenting on a "breaking" story is that you never have all the information at one time.  Now it seems the deputy clerks, save Davis' son, have promised to issue marriage licenses, so the work of the county clerk's office will go on without Ms. Davis.  She won't be released from jail immediately, but I also wonder if the Judge will soon release her with instructions that if she blocks the issuance of licenses again, she's back in jail instanter.

Of course, if she's not in jail for long, and if the licenses flow, then whither her martyrdom?  Or even if she is there for long, it will be only her stubbornness that keeps her there.  She won't stop the marriages from happening.

Watch the doughnut, not the hole

Mark Joseph Stern makes an excellent point:

Now the Liberty Counsel has filed an angry, rambling application to the Supreme Court that is little more than an anti-Obergefell rant dressed up as a legal document. The fact that Davis’ lawyers couldn’t tone down the animus for long enough to pen the application is distressing but not surprising. More and more, it’s beginning to look like the Liberty Counsel is taking Davis for a ride, using her doomed case to promote itself and its extremist principles. Davis has certainly humiliated and degraded the gay couples whom she turned away. But I wonder if, on some level, she isn’t a victim, too.

To fully understand his point, you should know Ms. Davis' lawyers have actively advised her to defy the court's orders.  That is what we lawyers call "unethical," a word that means you probably shouldn't be practicing law and, at a minimum, should have your license to practice in federal court revoked.*

No one wants to think of Kim Davis as a victim.  She has humiliated individuals; her personal life has been splashed across the internet; her husband has responded belligerently to death threats (no surprise, actually; I'd do the same for my wife, except I'd have to buy the gun first.).  She hasn't done much to deserve our sympathy.  And, you will say, she's walking into this with her eyes open:

“I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God. I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a heaven or hell decision.”

She may be sincere in her belief, but she's being taken for a ride by her lawyers.  I could see that, and all I know of this case is from news reports.  I haven't read any of the pleadings, but just what gets reported made it clear to me the lawyers in this case were political, not legal.  They shouldn't be allowed into a court of law; and now it appears they are actively putting their client at risk.  It is perfectly clear they have never pursued this case for their client's interests, but only for their own.

She'll be the one paying the fines and going to jail (if it comes to that).  Sure, maybe they can crowd source the fines (for a while); but nobody can go to jail for Ms. Davis.

This does not make her innocent; but she is being misled, and abused.  Our internet ire should land on her lawyers, more so than it does on her.  She will eventually fade from our attention.

The all but anonymous lawyers will move on to their next victim.

*not the same as losing your license to practice law.  Federal courts require application and licensure before you can appear before them, a "license" the Federal court can revoke.  They don't like people playing games in their system, and they don't have to put up with it.  Lawyers can lose their ability to go to federal court, but can still practice in states where they are admitted to the state bar.  If that doesn't happen to these lawyers, it still should.  Their actions are indefensible.

Does anybody really know what time it is?

Does anybody know what Rand Paul is talking about?

"I think one way to get around the whole idea of what the Supreme Court is forcing on the states is for states just to get out of the business of giving out licenses," Paul said. "Alabama has already voted to do this, they’re just no longer going to give out licenses. And anybody can make a contract. And then if you want a marriage contract you go to a church. And so I’ve often said we could have gotten around all of this also in the sense that I do believe everybody has a right to a contract."

First, best I can tell, Alabama is still issuing marriage licenses (can't be married without one!).  Second:  marriage has always been a contract under civil law.  Marriage licenses just allow  the ordering of that contract, the registration of it, and prevention of bigamy.  It also allows the state to determine paternity, and assign responsibility for children of the marriage, as well as ownership of property from the marriage.  Which is why Alabama Probate Clerks issue marriage licenses; marriage often ends up involving probate.

So if states "get out of the business of issuing marriage licenses," what happens to all that property and family law?  Not to mention health laws and tax laws?

Is this guy really that big a moron?

Unphilosophical Investigations

I've never gotten around to reading Philosophical Investigations (I prefer the more fragmentary works, lectures notes, etc., published posthumously), but this quote is marvelous, if only because I love coffee and I like Wittgenstein:

“Describe the aroma of coffee—why can't it be done? Do we lack the words? and for what are words lacking?—But how do we get the idea that such a description must after all be possible? Have you ever felt the lack of such a description? Have you tried to describe the aroma and not succeeded?” Wittgenstein, Philosophical Investigations.

The Slate article is good, too, although I could do without the back-handed slap at "bloviating deconstructionists."  Then again, analytical philosophers are engaged in a constant feud with Continental philosophers; although I've always thought of Wittgenstein bridging that gap somewhat (which is yet another way of reading him, and yet another controversy about how he should be understood.  Oh, read the article, you'll see what I mean.)

I'm always asking my students to describe a flavor, and then asking them why they can't.  It has something to do with composition and rhetoric, of that I'm sure.....

Blessed are....

My take on this is not that of Charlie Pierce.  To the secular world, this announcement by Pope Francis can seem patronizing and paternalistic, and even the demand for contrition can seem too much.

But this applies only to Catholics, not to all women in the world.  If you want the official blessing of your church, this is what you do.  And it doesn't seem like much to me, considering we are all called, if we are Christians, to be contrite and to humble ourselves before God.

I'm a little perplexed when people think the Pope should not be Catholic, but rather should agree with them and then, if possible, be Catholic; and if not, just don't be Catholic.  It kind of ignores the reason he's the Pope in the first place.

I also think this is a great deal more movement on abortion than I ever would have expected.  Then again, having known women who were getting abortions, I understand this as I think Francis does:  as a pastoral care issue.

The Pope is determined to restore some of the pastoral office to the Holy See.  He can't be the Pastor-in-Chief to the Roman Catholic world, but he is, I think, going in the right direction.  People who seek the blessing of their church in reconciliation need to come with contrite hearts (otherwise what's the point of the blessing?  What good does it do you?).  But they also need to know their church will accept them, that the blessing and the reconciliation is available.

Seems to me that's the heart of the gospel message.

Government: Does Anybody Here Understand How This Thing Works?

Can't wait to see their education policies....

No:

"I'm going to have Fred Smith, the founder of FedEx, come work for the government for three months," the Republican presidential candidate said at a town hall event in New Hampshire.

"Just come for three months to Immigration and Customs Enforcement and show these people." Christie said that 40 percent of undocumented immigrants in the country did not cross the U.S. border with Mexico, but instead came into the country legally on visas. "

We let people come into this country with visas and the minute they come in, we lose track of them," he said. He suggested the FedEx model would prevent immigrants from overstaying their visas.

"We need to have a system that tracks you from the moment you come in and then when your time is up—whether it's 3 months or 6 months or 9 months, 12 months, however long your visa is—then we go get you and tap you on the shoulder and say, 'Excuse me, it's time to go,'" Christie said.

(Because FedEx has custody and control of a package from the moment it is given to them, to the moment it is delivered.  Likewise, the Federal government will take custody and control of immigrants on visas until their visas expire.  The government already does that:  we call them "prisons."  Visas; does anybody understand how they work?)

Apparently:

"And I think this election is largely about the idea -- the idea of America is slipping away in front of us. When it comes to immigration policy, what I’ve experienced and seen is that a smart immigration policy makes our country stronger; a dumb one makes us weaker. We’ve got a dumb one today," Jindal said.

"Yes, we need to secure our border. Stop talking about it," he continued. "I think we need to insist that folks who come here come here legally, learn English, adopt our values, roll up our sleeves and get to work."

(And by borders, do you mean all borders?  Because it seems to me only the East Coast and West Coast are left to propose walls for.  I guess once the walls go up, FedEx will have an easier time telling which of us get to stay.)

Not.

Republican presidential candidate and Wisconsin Gov. Scott Walker said on Sunday that a wall along the border between the United States and Canada is a "legitimate issue" to consider.

(No.  Seriously.  Canadians look just like us!  Well, not like Bobby Jindal, but you know what I mean.  It's the only way to be sure we keep their socialized medicine north of the border.)

Or, they just don't want to.

Rowan County Chief Clerk Kim Davis' lawyers filed an emergency appeal late Friday asking the Court to grant "asylum for her conscience" and allow her to continue to deny marriage licenses to same-sex couples, according to The Associated Press.

(Because why shouldn't she be allowed to do her government job in the way she sees fit, and damn the rule of law! Except when the rule of law allows her to do her government job as she sees fit.  After all, it's her constitutional right to draw government pay and refuse to work for it! Is this a free country, or not?  And can the law grant asylum to metaphysical concepts like "conscience"?  Inquiring minds want to know!)

"No matter, never mind."

"Mind" is a metaphysical concept.  So is "consciousness."  Which may be why it is "the hardest unsolved problem in science."  And why "solving" it so resembles the effort to reconcile quantum mechanics and general relativity:  i.e., it wanders "off into fantasy realms of higher dimensions with little or no empirical connection to our reality."

Which, you will note, violates the fundamental premise of science.  Just like metaphysics does.

Philosophers, especially philosophers of religion, and theologians, have gone to great pains in the last 100 years to jettison "classical" metaphysics.  One effort to replace it was with a non-metaphysical metaphysic based on the work of Alfred North Whitehead after he gave up on mathematics and logical positivism thanks to Kurt Godel and Ludwig Wittgenstein.  That effort spawned "process theology," which never got further than a few American theologians, best I can tell.  We have to discard metaphysics because physics, above all, won't allow it anymore.

But we still have to solve the problem of consciousness, which is related to mind, which "arises" from a brain, so it must be physical, which makes it science-y somehow.

Right?

60 years ago the popular theory was that brain cells reached a critical mass (much like the "trigger" for a nuclear bomb.  We do love our metaphors, especially if they sound scientific!) and "became" conscious.  Arthur C. Clarke wrote a story about it happening with enough telephone exchanges, the connections of the phones standing in for the connections between brain cells.  Essentially the same idea fuels science fiction tales of world-wide defense computers that "wake up" and decide to destroy all human life in order to enact "peace."  It's been a favorite meme for decades.

And it's utter bollocks.  As well as an attempt to escape metaphysics by pretending the solution to consciousness, or mind, or "soul," isn't metaphysical.

A commenter at Religion Dispatches tried to argue that "mind" arose from the brain, but "soul" was some outdated religious notion.  But "soul" is no more understandable apart from the body than mind is apart from brain.  When we speak of "soul" we were always speaking of the animating force of the body, of what is different between a sleeping person and a corpse, why one will eventually awaken and move, and the other will never move again.  Soul as the essence, the inviolable and eternal person we might now call "personality" started in the West not with religion, but with Socrates.  He gave us the dualism of soul and body, leading to the modern critique that soul cannot be known apart from body and so cannot claim a separate existence from the body.  But of course soul cannot be known apart from the body, any more than "mind" can be known apart from the brain.  Whether soul can exist apart from body is a metaphysical question (and not necessarily a religious one).  Whether it can or not, body cannot exist without soul, without some animating process, some "spark", some motive factor.  Because once that factor is lost, the body begins an inexorable decay.

And yet some still think "consciousness" can be "uploaded" into a computer, because computer=brain; somehow.  Or it will; someday; when our technology finally catches up with nature.

Utter bollocks, and not something most serious thinkers take seriously.  But the idea that the computer somehow reflects our brain, our mind, is still a seductive thought; and it's a metaphysical one.  Why is a sleeping person different from a corpse?  We have known since the dawn of humanity that sufficient damage to the body can cause the animating force to fail.  It doesn't have to go anywhere, but where did it come from?  Why can't we reproduce it?  Mary Shelley knew enough to cloud her Frankenstein's efforts in mystery:  he used alchemy and something that was probably magic to give life to his monster.  It wasn't a lightning storm, otherwise the galvanic response of frog's legs would re-animate corpses around the world.  Where does the "spark of life" come from?  How is it only living things can pass it on?  We can grow cells in a laboratory, keep them alive for years in an artificial environment.  But if they are not alive to begin with, there's nothing we can do to re-animate them.  Why not?

The distinction between living and dead is the same as it's ever been:  between something that will move, and something that will never move again.  We've become more aware of the subtleties of that line, of the difference between corpse and coma, but we've done nothing to erase that line, to change it, to understand how to reverse it.  We speak of "life" but we still speak of something that is not entirely physical; known physically, but not understood physically.

The same way we speak of "mind;" the same way we speak of "consciousness."

Metaphysics is dead.  Long live metaphysics.

Let us now praise famous men

Jimmy Carter is, by and large, remembered as a failed President.  We remember him for MEOW; we remember him for "malaise"; we remember him for the failed effort to rescue the hostages in Iran.  We honor him now for what he's done since he was President.

We don't remember him for the Camp David accords which,even through changes in Egypt's government, including a revolution, the election of a President allied with the "Muslim Brotherhood," and the deposition of that president, has still maintained peace between Egypt and Israel.

We all agree peace in the Middle East is a chimerical goal, that it cannot be achieved; and yet one President achieved it, between two countries, and it has held.

And what we remember is the sweaters.  Then again, who is giving Pope Francis credit for the rapprochement between the U.S. and Cuba today?

So it goes.

Do I have to draw ya a picture?

Unsurprisingly, this just gets funnier:

“The book includes cartoon drawings of a woman masturbating and multiple women engaging in oral sex,” he writes. “If the book explored the same themes without sexual images or erotic language, I would have read it. But viewing pictures of sexual acts, regardless of the genders of the people involved, conflict with the inherent sacredness of sex.”

Right, because the book is dirty and has boobies in it.

Well, no; the problem is, the book has PICTURES in it!  I can read about hot sex (get this kid a copy of The Story of 'O', stat!  Believe me, the language in that book is anything but 'erotic.'  I, er, have a friend who told me.), but I can't see it!  Because God doesn't care about words, God only cares about pictures.

Which is funny, because according to some Jewish traditions, any depiction of the human form violates the laws of Moses, since humans are made in God's image, and the image of a human is a depiction of God, which is strictly forbidden.

And I guess that could get us into God having sex in those pictures.....

My mind is just not right, sometimes.  Anyway, what's funny here is the distinction we draw between pictures and words.  If I pull a potboiler novel off the shelves of a bookstore, the kind of thing cranked out every month under the same author's name (nobody is that prolific!), you'll stumble across a fairly explicit sex scene every three chapters or so.  Nobody blinks.  Now, film that same scene, exactly as presented in the novel, and suddenly you get an "R", if not NC-17 (or whatever replaced "X") rated film.

It's pictures that matter.

Because in the beginning was the Word, but the Word was not dirty....it was the pictures that came later that were dirty.  Which has something to do with Proust and a squid, but I'm not sure why....

Don't try this at home, kids

I was listening to Diane Rehm this morning, interviewing two writers who penned an Atlantic article about "political correctness" on college campuses (a term they never once tried to define, which I thought bizarre and a blotch on the work of a lawyer and a college professors, two professions where sourcing is vital to publication); and I'm thinking the whole time that one anecdote here and another there doth not a representative picture make.

And then some students at Duke got everybody's attention by objecting to reading the book Fun Home,  a graphic novel I've never heard of but which apparently would repay my attention.  Why do they object to it?  Not just because it includes scenes of "graphic sexuality" (no pun intended, I presume) but because:

Grasso and his peers imply that they’re being bullied when they’re encouraged to read Fun Home.

Precisely the kind of "trigger warning" mentality the authors of the Atlantic piece were complaining about.

I hate it when that happens.

Jacob Brogan is right about these students:

Much like Bruce in one of the book’s most famous sequences, they’re choosing to live their lives in narrowly circumscribed circles, willfully blind to the stories unfolding around them.

Which is not so much "politically correct" as it is extending adolescence further and further into adulthood, which is something that's been happening since as identified "teenagers" and then decided they could be "juvenile delinquents" and finally came up with the purportedly scientific category of the "teenage brain."

And yet science, of course, has nothing to do with culture, and is only concerned with Truth.  But I think if we're "coddling" students, it has less to do with "political correctness" and "helicopter parents" than it does with the root notion that childhood is to be protected at all costs, and the upper limits of childhood are to be extended further and further with each generation.

Maybe it has something to do with the fact we seem to be living longer; and we still worship at the fountain of youth culture.  At one point "Boomers" were the most important people on the planet; now it's Millenials.  It would seem the problem is far more fundamental than how a few identifiable groups are behaving.

The stories I grew up on were warnings about pushing children into college at too young an age, and breaking them with the sudden burdens of adulthood.  Now we seem afraid to let them take on the burdens of adulthood at all, and we push them into college while insisting they remain children.

And where it stops, nobody knows.

"All watched over by machines of loving grace...."

Some mechanists have conceded that a consistent machine could be out-Godeled by a mind, but have maintained that the machine representation of the mind is an inconsistent machine, but one whose inconsistency is so deep that it would take a long time ever to come to light. It therefore would avoid the quick death of non-selectivity. Although in principle it could be brought to affirm anything, in practice it will be selective, affirming some things and denying others. Only in the long run will it age - or mellow, as we kindly term it - and then "crash" and cease to deny anything: and in the long run we die - usually before suffering senile dementia. Such a suggestion chimes in with a line of reasoning which has been noticeable in Western Thought since the Eighteenth Century. Reason, it is held, suffers from certain antinomies, and by its own dialectic gives rise to internal contradictions which it is quite powerless to reconcile, and which must in the end bring the whole edifice crashing down in ruins.* If the mind is really an inconsistent machine then the philosophers in the Hegelian tradition who have spoken of the self-destructiveness of reason are simply those in whom the inconsistency has surfaced relatively rapidly. They are the ones who have understood the inherent inconsistency of reason, and who, negating negation, have abandoned hope of rational discourse, and having brought mind to the end of its tether, have had on offer only counsels of despair.


Against this position the Godelian argument can avail us nothing. Quite other arguments and other attitudes are required as antidotes to nihilism, and the Godelian argument can be seen as making this reductio explicit. And it is a reductio. For mechanism claims to be a rational position. It rests its case on the advances of science, the underlying assumptions of scientific thinking and the actual achievements of scientific research. Although other people may be led to nihilism by feelings of angst or other intimations of nothingness, the mechanist must advance arguments or abandon his advocacy altogether. On the face of it we are not machines. Arguments may be adduced to show that appearances are deceptive, and that really we are machines, but arguments presuppose rationality, and if, thanks to the Godelian argument, the only tenable form of mechanism is that we are inconsistent machines, with all minds being ultimately inconsistent, then mechanism itself is committed to the irrationality of argument, and no rational case for it can be sustained.

Via Thought Criminal I get this marvelous analysis of mechanistic thinking, of which these are the concluding paragraphs.  What a lovely way to start the day.

*The pessimism of the ancient Greeks:  the fundamental nature of the universe is chaos, and chaos is the state to which the universe must inevitably return.  Logos falls because Chaos is the true nature of the cosmos. 

Plus ce change

I'm not yet convinced Donald Trump isn't just doing performance art:

"It's gonna be a great wall," Trump said on the Sunday program. "This will be a wall with a big, very beautiful door because we want the legals to come back into the country."

And Jeb! reminds us the original anchor babies came from Asia:

When asked if he thought his repeated use of the term "anchor babies" – a derogatory term for children born in the U.S. to undocumented immigrant parents – Bush said: "What I was talking about was the specific case of fraud being committed where there's organized efforts, and frankly, it's more related to Asian people coming into our country and having children in that organized effort."

One can't help but note his wife is not Asian.

It takes a lot to laugh; it takes a train to cry.

We the (benighted) people.....

So I had a bit of schadenfreude, enjoying the early comments to the most recent screed by Jeffrey Tayler.  More readers than not thought Tayler went completely off the rails. (I read Tayler for the comments, now; it's like reading a barometer to gauge the weather.)

Eventually, of course, this was cited:  the article that "proves" atheists know more about religion than believers.  Apparently if Jews recognize Moses but not Maimonides, and Protestants can't tell you if the elements of the communion are sacramental (or what a sacrament is) or merely symbolic, then they don't really "know" anything about their religion.

As if religion were a matter of passing a multiple-choice test, or every Christian believer should be able to get a seminary degree without a seminary education.

Dare I repeat this blog's motto?  "Ideas don't matter.  Things don't matter.  People matter."  Does my knowledge of church history, ecclesiology, soteriology, hermeneutics, exegesis, biblical theology, really make me a "superior" Christian to my grandfather, a lay Primitive Baptist pastor and one of the kindest, gentlest, wisest men I ever met?  I assure you he couldn't explain the difference between transubstantiation and consubstantiation. Does that make me superior to him?  On what scale, and for what purpose does anybody set up that scale?

To put this in context, let me ask all the "natural born" American citizens reading this if you can tell me the contents of all 10 of the "Bill of Rights"?  Or can you at least tell me the content  of amendments 7, 8, and 9?  Google is your friend, but Google is cheating in this test.  Can you tell me who was present in Philadelphia to write the Constitution?  Can you tell me what the 16th amendment is, or the 17th?  How about the 11th or 12th?

And if you don't know, are you less of a citizen than someone who does know?  Does it matter to you as an American whether or not you know those things, anymore than it matters to a Jew whether Maimonides was a Jew?  If you are a Christian, is it important that you know who Luther was?  Ever heard of Zwingli? Any idea what lasting influence he had on Protestants?  Do you really know anything about Calvinism, or do you just think you do?  Can you name the two branches of historic Protestantism, and explain their relationship to Pentecostalism?

Would it matter if you could?

And if you know more about the Constitution than you do now, if you know what the amendments are I mentioned above, or how they have been interpreted by the Courts, does that weaken your trust in the form of government we have?  Does knowing Thomas Jefferson owned slaves and probably raped Sally Hemings make you want to repudiate the Declaration of Independence?  If you became a Constitutional scholar, would you expect you would repudiate the democratic republic of the United States?  Why, or why not?

These things that pass for knowledge I don't understand.....

"For I am very holy...."

So I was in a bookstore the other evening thumbing the remaining copy of Lapham's Quarterly, where I came across Christopher Hitchens' piece on Mother Teresa.  It was as harsh as I'd heard it was (I'd never read it before, and unfortunately it is not available online), and it relied mostly on the work of Robin Fox in an article about Mother Teresa for the Lancet.  It was, I've since learned, an excerpt from a book, apparently more like a long pamphlet, which was Hitchens' attack on Mother Teresa and her work with the poor in India.

Interestingly, in his essay in that issue Lewis Lapham notes that: "the word philanthropy first appears in Western thought in the fifth century BC, in Aeschylus’ play Prometheus Bound to name an act of rebellion and denote the crime of treason."

I'm not so interested in the controversy surrounding Hitchens' critique of Mother Teresa, except as it reveals the fundamental distinction in thinking between the religious leader and the religion critic.  A little Google searching reveals Simon Leys (pen name of Pierre Ryckmans) was Hitchens' bete noir on this subject.  The only argument by Leys I can find on-line (I'm a lazy researcher) references a complete review of Hitchens' tirade against Mother Teresa, but I can't find it on-line.  Apparently it exists in a book of Leys' collected essays, and includes this reference to Hitchens:

Mother Teresa is not a philanthropist. She is a Christian. A philanthropist is a person who has a fondness for anthropoids. A Christian is a person who loves Christ.

That is a perspective that has to be kept in mind when dealing with someone like the Blessed Teresa.  Saints are very strange persons to most of us.  Of her love of Christ, the reviewer of Leys' book of essays goes on to say:

 This "weird belief that a dead man called Jesus is still alive should command all the deeds and all thoughts of a Christian", writes Leys, "is the key to understanding Mother Teresa's vocation". Whether or not you agree with Hitchens's assertion that religion should not intrude on good works, Leys's understanding of basic Christian doctrine exposes the totalising character - and so the narrowness - of the journalist's rationalism.

It is that "totalising character...of the journalist's rationalism" that intrigues me.  Ultimately, one cannot argue that Hitchens is wrong and Leys is right, nor vice versa.  We are talking about two irreconcilable views of reality; and one cannot appropriate the other.  We are back to Wittgenstein's observations on believers:

Christianity is not a doctrine, not, I mean, a theory about what has happened and will happen to the human soul, but a description of something that actually takes place in human life. For 'consciousness of sin' is a real event and so are despair and salvation through faith. Those who speak of such things (Bunyan for instance) are simply describing what has happened to them, whatever gloss anyone may want to put on it.

 Ludwig Wittgenstein, "Ethics, Life and Faith," The Wittgenstein Reader, ed. Anthony Kenny (Oxford, Blackwell Press 1994).

Or perhaps more to the point:

In religion every level of discourse must have its appropriate form of expression which has no sense at a lower level. This doctrine, which means something at a higher level, is null and void for someone who is still at the lower level; he can only understand it wrongly and so these words are not valid for such a person.

In Wittgenstein's terms language games are not wrong or right, valid or invalid:  there can be violations of the rules of one "game," but what makes sense in one game may be nonsense in another.  Establishing a hierarchy of systems, however, is impossible.

And so we can have this obituary of Mother Teresa:

Mother Teresa admitted, in a famous series of BBC interviews, that she was not really doing all that much to ease the lot of the poor in India. The editor of the Lancet, visiting her Home for the Dying in 1994, reported that stocks of medicine were insufficient, and that not enough was done to cure the sick or ease the pain of the dying. But Mother Teresa believed it was not “things” her patients needed; they needed to feel wanted, and to die at peace with God. The secular view of death, as something to be resisted, met, in Mother Teresa, the religious view that death should be joyfully surrendered to. Neither side could hope to understand the other.

The obituary notes that Mother Teresa's order was a Franciscan one, "dedicated on Franciscan principles to serving the destitute and dying in the slums."  What little knowledge I have of Francis (not the plaster saint, but the real one) tells me she lived in strict accordance with his understanding of God, and no, it is not one most of us would find either pleasant or rational.

Which is the point:  not to rebut Hitchens (others have done that more ably than I can), or to argue for the saintliness of Teresa (again, others have done so beyond my abilities).  It is to point out the tension between God and the world.  When we say Jesus died on the cross for our sins, it makes Jesus  more comfortable for us.  It means he did it for us, much the way we imagine soldiers now die for our freedom.  It's a comforting mistake in understanding.  But if we follow Paul's teachings, we know Jesus died for faithfulness to God; and that is a stranger and harsher thing by far than dying for us, for our sins.

It makes God wholly Other, and frighteningly other, too.  It creates a tension, and not even a tension we can think of as a creative tension.

"The motif of the circle will obsess us through this cycle of lectures."

...

 "Now the gift, if there is any, would no doubt be related to economy. One cannot treat the gift, this goes without saying, without treating this relation to economy, even to the money economy. But is not the gift, if there is any, also that which interrupts economy? That which, in suspending economic calculation, no longer gives rise to exchange? That which opens the circle so as to defy reciprocity or symmetry, the common measure, and so as to turn aside the return in view of the no-return? If there is gift, the given of the gift (that which one gives, that which is given, the gift as given thing or as act of donation) must not come back to the giving (let us not already say to the subject, to the donor). It must not circulate, it must not be exchanged, it must not in any case be exhausted, as a gift, by the process of exchange, by the movement of circulation, of the circle in the form of return to the point of departure. If the figure of the circle is essential to economics the gift must remain aneconomic. Not that it remains foreign to the circle, but it must keep a relation of foreignness to the circle, a relation without relation of familiar foreignness. It is perhaps in this sense that the gift is the impossible.

"Not impossible but the impossible. The very figure of the impossible. It announces itself, gives itself to be thought as the impossible. It is proposed that we begin by this."

--Jacques Derrida, Given Time: I. Counterfeit Money, tr. Peggy Kamuf (Chicago, University of Chicago Press, 1994), 7.

Sorry to interrupt with that long quotation, but this idea must be placed precisely in context.  The presence of the wholly Other in our lives disrupts all notions of economy, or a circle, of payment and reward, cause and effect.  The wholly Other breaks the circle, and gives only a gift.  But that gift is terrible and frightening from the view of the world; it costs not less than everything, as the poet said, and that seems no gift at all.  However, the cost is what is measured by the world; it is not an aspect of the gift.  This is a truly disruptive tension, a truly decisive break.  This sets aside classical soteriology with its economy of repentance and redemption, payment in blood and gain in eternal life.

"A Christian is a person who loves Christ."

Yes.  And what a strange, strange person that is.  Such a person truly makes an act of philanthropy an act of rebellion and a crime of treason.  "Never share my hearth, never think my thoughts, whoever does such things."  There's a reason those lines come from the "Hymn to Reason."

Something's happening here, what it is ain't exactly clear....

Funny, she doesn't look Mexican!

And if you want to know what America would look like if the 14th Amendment were reinterpreted, you have only to look to Texas:

Juana, for her part, did not encounter problems presenting her matrícula along with hospital records to obtain birth certificates for her two older children, who are 13 and 8 years old. But obtaining a birth certificate for her youngest child has proved challenging. She has lost work lately because she cannot get her 1-year-old daughter accepted into day care without a birth certificate.

 “She should have the same rights as a child born to American parents,” she said

I would argue, per Plyler v. Doe, that a birth certificate should not be required for day care, but that would be yet another lawsuit.

And Texas is not saying these children are not U.S. citizens; it is just saying they can't get a birth certificate.

I honestly don't remember providing any identification papers when my daughter was born in Texas over 23 years ago.  Then again, I'm white, and my wife is white, and neither of us have so much as an "Hispanic" name.  We are blandly Anglo, and therefore acceptable in Texas.  Well, that and my daughter was born long before 2008, when the rules changed, or 2013, when enforcement of that change finally began.

A matricula consular, issued by the government of Mexico, is recognized as valid identification under the PATRIOT ACT, and is accepted by the Federal government as a valid i.d.  Under Texas law, "acceptable forms of secondary identification" for purposes of obtaining a Texas birth certificate include:  "(xv) Foreign Identification with identifiable photo of applicant."  That's a picture of a matricula consular above.  It is accepted as identification in Texas, except when it isn't.

The argument of the Texas Department of Health is fairly consistent:

... Chris Van Deusen, a spokesman with the Texas Department of State Health Services, said the policy has nothing to do with discrimination.

"DSHS provides certified birth certificates without regard to the requestor's immigration status and has never accepted the matricula consular as adequate identification," he said.

Van Deusen also said that the problem for the state of Texas is that the documents used to obtain consular IDs "are not verified by the issuing consulate." He added that other states and federal agencies reject consular IDs for the same reason.

The state of Texas provided CNN with a list of valid documents of identification. The list includes foreign passports accompanied by a visa issued by the U.S. State Department, a Mexican voter registration card or even a foreign identification with an identifiable photo of the applicant.

And:

The Texas Department of State Health Services said in an emailed statement that it “provides certified birth certificates without regard to the requester’s immigration status and has never accepted the matrícula consular as adequate identification. This is because the documents used to obtain the matrícula are not verified by the issuing consulate.”

Except those same articles, and others, point out this form of i.d. was accepted by the state of Texas until 2013; and there's nothing in Texas law to indicate it is not acceptable as a form of i.d.

The discussion here is also helpful; and it appears this has caught the attention of Democrats in Texas, who don't like this new policy one bit.  But you know, I'm not so concerned with what Donald Trump represents or what crazy new thing Ted Cruz said; I'm much more concerned with what's going on in these "laboratories of democracy" that not even Charlie Pierce is paying attention to.

And if you think this subject isn't about race, because in America it's never about race, think again.  A quick Google search found the following links:  "The Matricula Consular: The Only Card an Illegal Immigrant Will Ever Need;" "Mexican Sham ID;" "IDs for Illegals: The 'Matricula Consular' Advances Mexico's Immigration Agenda."  Clearly this is another of those "issues" that's running under the national radar, but running loudly enough in the state where the Governor was terrorized by a handful of loonies in Bastrop, that it got the attention of the Texas Department of Health.

Mexico has, by the way, been issuing these cards for over 130 years; and most American law enforcement are quite happy to use them as identification.  What we are seeing is yet another crackpot meme finding its way into government policy.

Donald Trump and Ted Cruz don't bother me; this kind of subversion of law by implicit racism, does.

UPDATE:  I got curious.  This is the where you go to order a Texas birth certificate.  The "Mail Application for Certified Copy" link takes you to a form that notes, boldly, it requires a photocopy of a valid photo i.d.  A valid secondary source for such an i.d. can include a student i.d.

But not a matricula consular, because it's not verified by the consulate.  Whereas a student i.d. is verified by...who, exactly?

Digging under the weeds

Just because I like things to be complete, and because the previous post was long enough, I add this by way of an update:

In the 1980s, the question of birthright citizenship began to take a similar shape as the “anchor baby” panic we see today. In their influential 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity scholars Peter Schuck and Rogers Smith argued that Congress could deny birthright citizenship to the children of unauthorized migrants, noting that Wong Kim Ark involved the child of lawfully admitted noncitizens. Both opposed the idea as a matter of policy.

Graglia leans heavily on this book in his argument, but doesn't give Schuck and Smith credit for the legal argument he tacitly claims as his own.  Still, there's no difference between them:  both rest on the idea that the parents of Wong Kim Ark were here legally, and so children of illegal immigrants have no birthright citizenship.

I still don't get the distinction, which Graglia rests on legal immigrants in America being subject to foreign authority, while "illegal" immigrants in America are....not?  That really just doesn't make any sense, especially in light of the cases holding that "persons" are entitled to due process and equal protection of laws in America, not just "citizens."

These people just really don't like the idea of non-Europeans in America.

The Yellow Peril and the Constitution as a "Suicide Pact"

So, going off in the weeds thanks to Charlie Pierce, I come up against Lino Graglia, an undistinguished member of the UT Law School Faculty whose name I remember from my days in Austin (and not for good reasons*).

Through Mr. Pierce I find a law review article by Mr. Graglia published five years ago, which one might consider the founding document for the legal theory being spouted by Donald Trump and aped by other GOP hopefuls for the party's nomination for POTUS.  I daresay the arguments made by Mr. Graglia are not sui generis with him, but his is the most recent and, as Mr. Pierce notes, the one the National Review is most enamored of.  

Rather than wade through Graglia's argument, I would point out this issue of birthright citizenship has been settled, according to most legal scholars, in U.S. v. Wong Kim Ark, a Supreme Court opinion from 1898.  I'm not a Con Law scholar, I found that case through NPR.

Being the case most damaging to his argument, Graglia leaves it until the end of his article.**  He tries to distinguish U.S. v. Ark on the grounds the ruling only applied to legal immigrants.  However, his argument is that the language of the 14th Amendment "and subject to the jurisdiction thereof" is of a piece and represents no change from the 1866 Civil Rights Act he claims was the progenitor of the 14th Amendment:

“[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .” The phrase “and not subject to any foreign power” seems clearly to exclude children of resident aliens, legal as well as illegal. The Fourteenth Amendment Citizenship Clause substituted the phrase “and subject to the jurisdiction thereof,” but there is no indication of intent to change the original meaning. 

Now that's a problem for the cohesion of his argument, because Ark clearly holds that, despite the fact the parents are subject to the Chinese Emperor, their child is an American citizen by birthright. As the Court states the legal issue:

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."

It couldn't be plainer that the Court has never supported Mr. Graglia's unique (and probably racist) reading of the Constitution.   This case is, as the lawyers say, on all fours with Graglia's interpretation of the 14th Amendment, and yet it rejects decisively his reading that "illegal" immigrants are still subject to a foreign power and therefore not under the jurisdiction of the United States (as does even the legislative history, as Amanda Terkel points out).

And if you think concern about Chinese immigrants making "anchor babies" is dead, you'd be wrong!

At the birthright hearing, King got things going by informing his colleagues that “birth tourism has grown substantially” and that it costs $48,000 for a Chinese national to fly to the United States, have her baby, get a birth certificate and take the child back to China. Though conservatives generally take a dim view of international law, King said the United States in this case should follow “almost every other industrialized country” in abolishing birthright citizenship. 

Everything old is new again.

What difference "legal" v. "illegal" immigrants would make, assuming arguendo his legal point is valid, is beyond me.  Legal immigrants such as the family in the 1898 case are still subject to the laws of the country where they hold citizenship.  Finding they are "outlaw" in this country if they are not here legally is a bizarre reading of the law that has never been supported since the founding of the country, and certainly not since the 14th amendment guaranteed due process and equal protection of laws to all persons covered by the Amendment (i.e., subject to the jurisdiction of the United States).

Mr. Graglia's article cites Plyler v. Doe, the pertinent case on that point, but he seem to ignore its holding (even illegal immigrants are entitled to equal protection under the law; that would be U.S. law, mind you) in order to support his bizarre and unsupportable reading of the 14th Amendment.

This, then, is the "legal basis" Donald Trump finds, and the "lawyers" he thinks agree with him and can make the case in court.  There's nothing to see here except some very, very sad examples of American racism still shining through, and still being treated as somehow legitimate because, as Mr. Pierce says, "It's not about race, because it's never about race."

*"And this is the very same Lino Graglia whose nomination for a federal judgeship in the 1980s fell apart amid allegations that he had urged Austin residents to defy a court-ordered busing plan and had used the racist word “pickaninny” in the classroom."  Yes, Austin was still trying to integrate its schools in the 1980's, ten years after my East Texas classrooms were integrated.  I still chuckle when people tell me how "liberal" Austin is, v. the rest of Texas.   

**Gaglia makes, it should be noted, the usual arguments about birthright citizenship and "anchor babies:"

A parent can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state.   Nor need doing so even be entirely altruistic. Illegal alien parents with an American-citizen child remain subject to deportation, but that deportation becomes less likely. They will be able to appeal to an immigration judge, an administrative court, and ultimately a federal court to argue that deportation would subject the American-citizen child to “extreme hardship,” a recognized ground for suspension of deportation, as it would potentially deprive the child of the benefits of his or her American citizenship.


Perhaps even more importantly if the deported parents opt to take the American-citizen child with them, the child can return to this country for permanent residence at any time. The child can then, upon becoming an adult, serve as what is known in immigration law as an “anchor child,” the basis for a claim that his or her parents be admitted and granted permanent resident status. The parents will then ordinarily be admitted without regard to quota limitations.

His one reference here is to a book from 1985.  He takes no account, in other words, of the massive deportations of the Obama administration, only recently suspended, and that ICE regularly separated minor American children from their immigrant families.  Nor, being a law professor, does he note that "anchor babies" can only apply for visas for their family members after the child reaches the age of 21.  If the parents are in the US without documentation at that time, they must leave the country and apply for visas in their home country.  Even then, having entered the country illegally, they cannot be readmitted until 10 years have passed since they returned to their home country.  So the "advantage" of being an anchor baby is a notably slender one, at best.

This is the factual basis for his legal analysis.  He, of course, expresses no concerns about children of European immigrants who may enter the country legally, overstay their visas, and become "illegal" (his reference point is Los Angeles, the source for his information Rep. Lamar Smith.  If you read Dana Milbank's column linked above, you'll perhaps wonder if Mr. Graglia isn't repaying a kindness from the gentleman from Texas.)  Apparently their American-born children being "entitled to all the advantages of the American welfare state" is not worrisome. 

The Dog Days of August

There are, I have come to learn, two legal theories for citizenship:  jus soli, and jus sanguinus.  The former means one is a citizen of the country where one is born; "birthright citizenship," although that term's a misnomer as it actually covers both theories of citizenship (both apply to birth circumstances).  That is the law in the U.S., and in France.  The other means you are a citizen by blood:  so if you are of German descent, you are a German citizen by right of birth because of your parents.

Yeah, I know, in the historical context of Germany, that seems kind of creepy to me, too.  Now imagine that becoming the standard for citizenship in the U.S.

Until 1924, Native Americans were not U.S. citizens unless they left tribal lands and basically renounced any connection to their tribe.  It was a more complex situation than that, but that boils it down to the fine fairly well.  And, granted, the U.S. does also recognize jus sanguinus citizenship; it's why Ted Cruz is a U.S. citizen, despite being born in Canada to a Cuban national father.  But if we start making U.S. citizenship solely a matter of parentage, does anyone doubt the burden of proof would be heavier on some babies than on others?

Interestingly this question revolves around the 14th amendment, which some now want to argue (as some always have) that it goes too far.  That's interesting because the impetus for the 14th Amendment was the notorious Dred Scott decision, which declared that blacks born in America were not citizens by birth.  The basis for that ruling was jus sanguinus:  "A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States."  The response to that is the first sentence of the 14th Amendment:

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.

Thus was Chief Justice Taney refuted.

There is no definition of citizenship in the Constitution before the 14th Amendment, but it's clear jus soli was the assumed legal doctrine for the new nation.  Congress was explicitly given power to decide how citizens were naturalized; but Congress was not given power to decide who are citizens of the U.S.  The only clause in the Constitution that addresses who citizens are (other than the fact slaves are chattel and not human beings) is the qualifications for President:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

That clause doesn't set the standard for citizenship as jus soli, but it implies it strongly enough that there was no real question about it until Dred Scott; and the desire to overrule that decision was so strong what is arguably the most important amendment to the Constitution was approved 11 years later.

And now the impetus to undo the 14th Amendment is the fear of a brown planet.  Lest you think I exaggerate, attend to the words of Donald Trump:

“We’ve got to bring our country back,” Trump told Bill O’Reilly on “The O’Reilly Factor” Tuesday night. “There a [sic] crime wave, a literal crime wave, Bill. You know, we’ve spent the last year $113 billion on illegal immigrants.”

No, I don't know where that number comes from; it's Trump, he likes to think "yoooge!"  And when Bill O'Reilly(!) tells Trump mass deportations are impossible because of the requirement of due process, Trump has a ready answer:

Trump insisted that O’Reilly was “wrong about the 14th Amendment,” adding that “there are many lawyers saying that that’s not the way it is” in terms of the “anchor baby” problem.

“They are saying it is not going to hold up in court. It will have to be tested, but they say it will not hold up in court.”

“The courts are never going to allow mass deportation without due process for each and every” undocumented immigrant, O’Reilly retorted. “Do you envision federal authorities kicking in doors in barrios around the country, dragging families out and putting them on buses?”

Trump repeated his earlier claim that, despite the guarantees offered by the 14th Amendment, “many of these people do not really have American citizenship, and we’ve got to take back our country.”

There's a lot of just sheer ignorance there, beginning with the concept of due process.  Numerous Supreme Court decisions have held that, under the 14th Amendment, all persons (not citizens, persons) subject to the jurisdiction of the United States, are likewise entitled to due process and equal protection under the law.  It's the reason public schools in America have to educate the children of "illegal immigrants," be those children American citizens or not.  Indeed, about the only benefits conferred by American citizenship are the right to vote (which the majority of Americans never exercise) and the right not to be deported from the country.  The idea that citizenship entitles you to a raft of goodies which, apparently, only immigrants and poor people have access to (the rest of us have to work for a living) is ludicrous on its face (and yes, the contradiction that "brown" citizens get goodies that "white" citizens don't get, is fundamentally racist).  By the way, another effect of the 14th amendment was to extend due process and equal protection of laws to "persons," a term the Court has read as being much broader than "citizen."  That, too, was a repudiation of Dred Scott.

Of course, almost no one ever looks at that simple reality; they just rant about the brown people taking things from us that the brown people aren't entitled to.

O'Reilly is right about due process, in other words, and it's in the law because of the 14th Amendment.  Trump, you will note, doesn't really want to repeal the Amendment; he just wants to re-interpret it.  Well, the first sentence of it, anyway.  And what he's baldly asking for is that we "take back our country" from the brown people.

Which is just starkly racist language. The very kind of starkly racist language the 14th Amendment was meant to eradicate from American Constitutional law.  I'm sure it's popular language with the minority of people who both identify with the GOP and are paying attention to politics in the August before primary season.  But let's be honest:  it's going to sink Trump and the GOP to the bottom of the deep blue sea if this language gets on the national radar next year, when more people start listening to what these people are saying.

And if you fear a President Trump could carry out his threat, consider the bureaucracy of the U.S. government he would have to make complicit in his illegal and unconstitutional reading of the law.  Consider that to this day the CIA fears reprisal for what it did in torture chambers around the world under W's assurance it was "legal."  Consider this would be in the open, in America, and require the complicity of literally thousands of people from the Cabinet down to border guards and ICE agents, not to mention judges from the Supreme Court to the immigration bench.*

In short:  ain't never gonna happen.  Anymore than the 14th Amendment is going to be reinterpreted to mean what it clearly doesn't mean, or is going to be repealed and replaced with language that says, in America, it's your blood that counts.

*To begin to make this work, Trump will either need a massive bureaucracy to start tracking who is born to whom, or he'll have to violate the Constitutional ban on ex post facto laws so he can declare certain classes of people "non-citizens" he can immediately deport.  Granted this could happen in a Hollywood movie, but in reality? Not even President Trump could make that happen.