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Constitutional Analysis Is Not A Suicide Pact

The opinions expressed by columnists are their own and do not necessarily represent the views of

Conservatives are allowed to disagree with each other, especially when the other conservatives are wrong. It’s good to debate. We’re not liberals – we do not have to move in utter lock-step, mouthing the same clichés and sharing the same disdain for America, decency and soap.


Right now, the conservative community is fighting over “birthright citizenship,” essentially the meaning of the 14th Amendment’s citizenship clause. For the last 150 or so years, that clause has usually been interpreted to mean essentially that if you are born here, you are a citizen. That’s indisputably the mainstream view among constitutional scholars – it just is. While constitutional law is not determined by polls of legal experts, it is ultimately determined by a poll of Supreme Court justices, so what’s usual and accepted needs to inform our strategy. For example, let’s not put blood and sweat into passing a statute going against the usual interpretation of the 14th Amendment that the SCOTUS is nearly certain to strike down.

Now, this is where the debate arises. A number of prominent conservative scholars disagree with the traditional view. They argue that Congress is not barred by the clause from enacting laws that would solve the anchor baby problem – and it is a problem – by ending automatic citizenship for kids whose illegal parents decide to drop them in Iowa instead of back in their terrible homeland.

I am not going to rehash the arguments except to say that I understand both arguments and that those who think the 14th Amendment does not confer birthright citizenship are just wrong. Here’s why I think so, if you are interested, from some Federalist Society RINO squish who clerked for Justice Thomas. Do not comment below on why I am wrong; I am not wrong – you are wrong, but that’s immaterial. The point here is not to rehash the argument but to discuss how we conservatives have argued the issue among ourselves because that has revealed some real problems within our movement. And we better fix them lest we devolve into a bunch of conformist goosesteppers like our liberal opponents – albeit employed goosesteppers.


When I tweeted that I agreed with the mainstream interpretation of the 14th Amendment, all hell broke loose on my social media timelines because I was interpreting the Constitution in a way that was not useful to our conservative goals. You see, I don’t necessarily like that the 14th Amendment confers the sacred honor of American citizenship on every Tom, Diego and Hong whose parents showed up in Los Angeles in time to push them out – often at taxpayer expense. I’d prefer that the Constitution allow Congress more flexibility to correct this very real problem via statute instead of going through the nearly impossible hassle of amending it. But it doesn’t. Based on my reading and research, that’s what I think the Constitution says. And I thought we were about what the Constitution says, not what we want it to say. I think it says “Yes.” What am I supposed to say? That it says “No?”

I realize that I disagree with Mark Levin and John Eastman on this issue – and a conservative does not do so lightly. I guess statistically it had to happen sometime, but I’m still not happy about it. Do you think I enjoy listening to Hugh Hewitt’s show and finding myself on Erwin Chemerinsky’s side? It’s like not being able to help but dig the new Nickelback single – it makes you want to die a little.

Now, it’s not actual debate that is a problem – debate is a good thing, and there’s also some benefit in an old-fashioned inter-movement struggle. As Clemenza told Michael Corleone, these things have to happen every few years – it helps to get rid of the bad blood. I’ve certainly done my share of fighting. But birthright citizenship is a sideshow; it’s the entirety of immigration that’s on the main stage. All GOP candidates need to be focusing on that and jamming it onto Hillary Clinton and the rest of the “Let’s Import a More Pliable Electorate” Party.


There is a lot of anger in conservatism right now – absolutely justifiable anger created solely by an establishment that thought it could keep lying to us without consequence. Well, there is a consequence, and his name is Donald Trump. And if Trump bludgeons some common sense into the guys currently in power in the GOP then that’s a yuuuuugely good thing.

But let’s not bludgeon each other over good faith disagreements. I don’t think the 14th Amendment says what it says because I like anchor babies. I don’t like anchor babies. I think the 14th Amendment says what it says because that’s what the 14th Amendment says. It’s an interpretation against interest.

Some super smart people disagree. I’ll live with their disagreement. In fact, I Iive with disagreement about law every day. I’m a lawyer – in every case I’ve ever fought, the lawyers on the other side thought I was wrong.

And that applies to non-lawyers too. We don’t need to lose our principles and our ability to grow stronger through healthy debate. People within conservatism are going to disagree about certain issues – vehemently – and people within conservatism better disagree about issues or we are going to become as weak and brittle as the Democrats. Look at them. They’re paralyzed by rigid orthodoxy. Bernie Sanders can’t bring himself to attack Hillary. Hillary can’t say dismembering babies is wrong. None of them can tell the hordes of screaming nitwits to give them back their microphones and get the hell off their stages.


We at least have competing ideas. Sure, Jeb’s idea is that illegal immigration is awesome, and that’s a terrible idea, but at least it’s an idea. We can debate it, and we can offer evidence and arguments about why it’s a terrible idea, and he’ll lose, and we’ll be stronger because we’re not a party of reflexes. We’re a party of thought. Think about that the next time you debate.

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