National Review opts for outright deception to explain the 14th Amendment

I'm not a lawyer, although I'd love to go to law school so as to learn the uncanny alchemy of turning plain English to mush.

We're accustomed to reading that it's politicians and (m)admen who practice such sorcery as a way of life, which is true. But the intellectual cradle of tortured reasoning and language-laid-low-on-the-rack is The Law, what with its medieval origins akin to theological debates about angels and pinheads.

It was, of course, the logic of law that led a recent U.S. president to question what the meaning of "is" is. In his mind, this was a perfectly valid question, since his mind had been trained at Yale Law. What's more, quite a few other lawyers saw nothing at all peculiar about the president's verbal hairsplitting, since their brains had also been damaged trained in law school. (A much earlier U.S. president, J.Q.A., would have told the is-confused president what he once told the Chief Justice of the Supreme Court: that his "was law logic — an artificial system of reasoning, exclusively used in courts of justice, but good for nothing anywhere else.")

Thus now we're engaged in a great debate about the 14th Amendment's meaning — a debate thrust on us by the demagogic mind of Donald Trump but eagerly taken up by pettifogging professionals and humble, Uriah Heeplike partisans of Trumpist LawThink. Section 1 of the Amendment reads: "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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Seems clear enough, does it not? Anyone born in the United States and subject to U.S. jurisdiction is a U.S. citizen. The "subject to jurisdiction" clause appears mostly to have had native Americans in mind, whose allegiance, in 1868, was to their own nations. Over ensuing decades, Congress expanded U.S. citizenship to them. The clause also encompassed, which is to say, excluded, the children of foreign ambassadors, since ambassadors' allegiance was to other nations as well.

Now comes Claremont Institute senior fellow Edward Erler, writing for National Review, who explains that the 14th Amendment's senatorial author meant to bar not just native Americans from citizenship, but — and here, Erler quotes the senator — "persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers."

That bracketed "or" made me curious. Its insertion utterly and radically changes the meaning of what the senator actually "remarked." Excise the "or" and the sentence, picking up at "who," reads merely as a run-on of "foreigners, aliens." That is, the senator was only bundling foreigners and aliens as, or with, those "who belong to the families of ambassadors."

In brief, "[or]" is included by Erler as an outright deception to the reader. He fraudulently separates "foreigners" from the ambassadorial ranks, so as to throw open all foreigners to legal interpretation. If the senator had meant to say or those "who belong" to ambassadorial families as a classification separate from foreigners, he would have done so.

From what I can gather, Edward J. Erler is not a lawyer; he's a political science professor at California State University. But there's no doubt he deserves an honorary J.D. from Yale, for he aspires — and he has succeeded — to torture plain English as a humble, Uriah Heeplike partisan of Trumpist LawThink. I have experienced, as you probably have at some miserable point in your life, the fraudulence of legal reasoning, and I'd say it renders as relative nothings the linguistic atrocities of Orwellianism and Luntzism.

In Erler's case, he just makes stuff up, which of course is a rudimentary tactic of the right. But is there any doubt he'll soon have an army of licensed, right-wing pettifoggers arguing his deception?

 

Comments

[Peter G]

I've taken a couple of law courses, basically contract law, for it is essential in securing a license as a professional engineer in the jurisdiction where I reside. My advice, just read the texts. It is no more or less convoluted than literary criticism.

I did attempt to take an additional legal course directed towards a professional degree in accounting and it was a basic survey course on Canadian law. The only thing I learned in that class was not to go for it was completely dominated by nascent activists who apparently thought the instructor was the embodiment of the Supreme Court of Canada and were prepared to argue the constitutionality of the simplest statement of fact. Yours is not the only country with a surplus of constitutional experts who aren't. They are everywhere.

[Bob]

It was wise to use the ambiguous term "pettifoggers" to describe the arguers. We're not going to see any actual lawyers who aren't paid rightist hacks, and likely retired ones at that, try to change the meaning of the 14th amendment. They would from that time forward have zero credibility in the non-Trump universe which, contrary to media hand-waving, is still the overwhelming favorite. The National Review Online is one of the political sites most disconnected from reality, and it's not surprising to see this idiotic Trump defense there, even if they couldn't find a lawyer to make it. Trumpateers are simply trying to create doubt unlike the legal "reasonable" variety. The authoritarian followers with faith in Trump are know-nothings, and he's taking advantage to reinforce the idea that he'll do something about immigration that the losers in Washington are just too stupid, cowardly and lazy to do. It's hilarious that several of the other Republican candidates from their "deep bench" are aping his nonsense. Trump's entertainment value just keeps going up as he wrecks the Republican Party at the national level. Sweet, sweet schadenfreude.

[dricey]

I've thought for many years now that the right wing would sooner or later begin to argue for reinstating slavery, and that when that happened, it would be as something "tossed out" by a talk-radio host. That has now happened, right here in first-in-the-nation Iowa, which currently teems with radio-time-hungry presidential hopefuls of the Bigots and Billionaires Party (formerly known as the Republicans):

http://mediamatters.org/blog/2015/08/19/ia-radio-host-jan-mickelson-enslave-undocumente/205020

Look for this to move into the mainstream of conservative political thinking over the next six to twelve months. The B&BP has declared war on the 1860s as well as the 1960s.

[Peter G]

I think the answer as to why the pacs aren't more active against Trump is fairly obvious. Everyone who has gone against Trump alone has to feel like a Crow Indian sent to kill Jeremiah Johnson. It probably isn't going to end well for them judging by recent attempts.

Pacs leave fingerprints and everyone is going to know whose pac is engaged in the cowardly back channel billionaire supported attack on their hero. At least that's what Trump's supporters will be told to believe. And will. Their best shot would be a concerted Cesarean style Ides of March attack on Trump. Which will be great for anyone in the Republican field who doesn't participate and is anxious to pick up Trump's disgruntled supporters in they succeed in ex-communicating Trump. God help them if they don't succeed.

Ant then there is the leverage Trump understands so well when it comes to third party threats. In biblical terms, what does it profit a candidate to become a nominee and then lose the election by an epic landslide?