Swearing an Oath

In light of the fact that some incoming Muslim congresswomen may be sworn in on a Quran (by Mike Pence no less), it is worth remembering that the U.S. Constitution does not require an oath of office to be sworn on a Bible, or on any religious text for that matter.

Article VI, Clause 3, which covers oaths of office, states that while elected officials in both state and federal governments, as well executive and judicial officers throughout the country, are bound “by oath or affirmation” to support the Constitution, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Of course, we have already had Jewish, Hindu, Buddhist, and Muslim representatives and officials, both in Congress and throughout various other state and federal offices, swear on their respective religious texts (Fun fact: In 2007, Keith Ellison of Minnesota, the first Muslim congressperson, was sworn in on a Quran formerly owned and cherished by Thomas Jefferson.)

But many other officials, both religious and secular, have sworn on nonreligious texts, or nothing at all. John Quincy Adams and Franklin Pierce swore on a book of law; Lyndon B. Johnson was sworn in on a Roman Catholic missal; and Teddy Roosevelt, who had to take the oath in a hurry after William McKinley’s assassination, did without anything, since there was no Bible on hand.

Moreover, many Christians are forbidden by their teachings to swear on anything; both Herbert Hoover and Richard Nixon, who as Quakers could technically not swear on anything, could have “affirmed” rather than “sworn” during their oaths, though it appears they did not do so.

The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.

America and its International Commitments

One of the biggest objections to the Iran Nuclear Deal is that it violated U.S. law because it was never approved by two-thirds of the Senate, as required by the “Treaty Clause” (Art. II, Sec. 2) of the U.S. Constitution. (Contrary to the beliefs of many red-blooded Americans, the Constitution gives ratified treaties the same force as domestic law, per the Supremacy Clause.) However, this reflects a fundamental misunderstanding of the deal, the Constitution, and international law.

First, the deal was never binding: It is classified as a “nonbinding political commitment”, which, by definition, and in contrast to a treaty, requires no congressional approval nor is legally binding. Throughout U.S. history, presidents of all parties have made international agreements without the approval of a supermajority of Senators, either through “congressional-executive agreements”—which are ratified by only a simple majority of Congress—or through “executive agreements”, which are made solely by the president without any congressional involvement.

Between 1946 and 1999 alone, the U.S. completed nearly 16,000 international agreements—of which only 912 (5.7 percent) were treaties ratified by the Senate. (Most were congressional-executive agreements.)

While the Constitution does not explicitly provide for these alternatives, these alternatives have long been considered legitimate. Thomas Jefferson, a globalist sellout if we ever saw one, argued that the Treaty Clause procedure is not always necessary; short-term agreements without Senate approval may be better since “when they become too inconvenient, [they] can be dropped at the will of either party”. Most of the Founders did not objective this, because they recognized pragmatic and expedient reasons to allow the president to make international agreements without going through the long and politicized channels of the legislature.

In fact, when Jefferson sought to purchase the massive Louisiana Territory from France, there was some debate as to whether expanding U.S. territory was legal, since the Constitution was silent on the matter. He ultimately prevailed on the argument—backed by the “Father of the Constitution” James Madison—that the executive’s broad foreign policy powers allowed him to acquire the territory through treaty; he subsequently signed an agreement with France in April, announced it publicly in July, and finally got it ratified by the Senate in October.

The Supreme Court has repeatedly affirmed these powers. In Missouri v. Holland, it held that the federal government can use treaties to legislate in areas that would otherwise fall within the exclusive authority of the states. That is because the Supremacy Clause of the Constitution gives treaties the same force as federal law, which is binding on the states. In American Insurance Association v. Garamendi, the Court reaffirmed that “the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”

Most Americans Know Next to Nothing About the Constitution

For a document that is practically deified as the greatest legal instrument in the world, the U.S. Constitution is woefully misunderstood, or not understood at all. Those are the depressing results of a 2017 poll from the University of Pennsylvania’s Annenberg Public Policy Center. (Though the data are one year old, I doubt the results have changed, except maybe for the worse.)

More than one in three people (37%) could not name a single right protected by the First Amendment. Only one in four (26%) can name all three branches of the government (down from 38% in 2011), and one in three (33%) cannot name any branch of government. A majority (53%) believe that undocumented immigrants have no rights under the Constitution, despite the Supreme Court ruling repeatedly that everyone in the U.S. is entitled to due process and the right to make their case before the courts.

As Chris Cillizza over at CNN points out, these dismal results aren’t limited to just one poll:

Take this Pew Research Center poll from 2010 When asked to name the chief justice of the Supreme Court, less than three in 10 (28%) correctly answered John Roberts. That compares unfavorably to the 43% who rightly named William Rehnquist as the chief justice in a Pew poll back in 1986.

What did the 72% of people who didn’t name Roberts as the chief justice in 2010 say instead, you ask? A majority (53%) said they didn’t know. Eight percent guessed Thurgood Marshall, who was never a chief justice of the Court and, perhaps more importantly, had been dead for 17 years when the poll was taken. Another 4% named Harry Reid, who is not now nor ever was a Supreme Court Justice.What we don’t know about the government — executive, legislative and judicial branches — is appalling.

It’s funny — until you realize that lots and lots of people whose lives are directly affected by what the federal government does and doesn’t do have absolutely no idea about even the most basic principles of how this all works. The level of civil ignorance in the country allows our politicians — and Donald Trump is the shining example of this — to make lowest common denominator appeals about what they will do (or won’t do) in office. It also leads to huge amounts of discontent from the public when they realize that no politician can make good on the various and sundry promises they make on the campaign trail.

While I think more and better civics curricula is a solution, I also suspect that the visceral hatred of all things government dissuades people from caring about these things in the first place. At the same time, I can also see how (often understandable) cynicism towards our political system might breed apathy, too. Why bother to know about a system that you are convinced does nothing good for you or society?

I’m Going to Leipzig!

I am ecstatic to announce that I and nine wonderful peers were accepted into the Leipzig-Miami Exchange Program for this spring, which brings together students from UM Law and Leipzig University in Germany to collaborate on various topics relating to law and policy. The goal of the program is to learn about each other’s legal systems, exchange ideas, and develop a mutual understanding of our points of views. As an intellectual powerhouse, a central player in European and global affairs, and one of the world’s most robust democracies, Germany is a natural partner in this endeavor. (It is also a fellow federal republic with very strong civil liberties and constitutional protections, given its efforts to move past its history.)

I will be partnering with a German law student to work on a presentation about restorative justice, which is an exciting and promising frontier in criminal justice, rehabilitation, and conflict resolution (hence why it was my top choice, though they were all good). We will incorporate the perspectives and approaches of our respective nations, and hopefully enhance our countries’ knowledge and methodology of restorative justice. I also get to hang out with the German student when they visit this January, then work on a second topic with another German student in May, when I will visit the hidden gem of Leipzig, Germany for a few days.

As someone with aspirations in international law, it goes without saying that I am immensely excited and grateful for the opportunity to develop skills in cross-cultural collaboration, which will help me grow personally and professionally. And as many of you know, I am always eager to get to know people and perspectives from other cultures.

Founded in 1409, the University of Leipzig is one of the oldest universities in the world and the second oldest in Germany. Nine Nobel Prize winners are associated with the university, and its alumni include such eminent thinks as Leibniz, a polymath who made major contributions to math, philosophy, and science; Goethe, widely regarded as one of history’s greatest poets and writers; Leopold von Ranke, considered one of the fathers of the study of history; composers Richard Schumann and Robert Wagner; Tycho Brahe, a Danish astronomer who greatly advanced the study of space; Fredrich Nietzsche, among the greatest influences in modern philosophy; and Angela Merkel, Germany’s current and first female chancellor.

Given its 600 years as an intellectual hub, it is unsurprising that Leipzig played a key role in bringing down the East German regime, initiating a series of spontaneous mass protests that were among the first and most prominent in the country’s history, catalyzing other cities to do the same. Since reunification, Leipzig has become one of Germany’s fastest growing and most dynamic cities, being rated one of the places in the country to live.

Needless to say, I cannot wait to visit such an amazing university and city and broaden my horizons!

Photos courtesy of Wikimedia.

Legal Advocacy at Its Finest

As a law student, I aspire to balance a fulfilling career with legal advocacy, taking on causes pro bono for those who lack the means to seek justice.  That is why I seek inspiration from the thousands of lawyers and jurists around the world who dedicate themselves to giving a legal voice to the voiceless — often at great risk and sacrifice.

Fortunately, I have no shortage of examples to follow, most recently and dramatically in the form of Saif-ul-Mulook, a Pakistani lawyer who saved his client from certain death, and who now faces death threats as a result. As the South China Morning Post reported:

After saving condemned Christian Asia Bibi from the gallows in Pakistan, her lawyer says he is facing the wrath of Islamist extremists – and wonders who will save him. But despite the threats against him, Saif-ul-Mulook says he regrets nothing, and will continue his legal fight against intolerance.

Mulook’s latest victory saw the freeing of Asia Bibi – a Christian woman convicted of blasphemy, who spent nearly a decade on death row – after the Supreme Court overturned her conviction on Wednesday.

[…]

The defence of Bibi was just the latest in a long line of controversial cases taken up by the barrister.

In 2011, Mulook was the lead prosecutor against Mumtaz Qadri over the assassination of Punjab governor Salman Taseer – a prominent critic of the country’s blasphemy laws and supporter of Bibi.

Qadri – one of Taseer’s bodyguards – gunned down his boss in broad daylight, citing the governor’s calls for reform of the blasphemy laws as his motive.

Mulook said he took on the case as others cowered, fearing reprisals from extremists. His prosecution resulted in the conviction and subsequent execution of Qadri, who was feted by Islamists and later honoured with a shrine on the outskirts of Islamabad.

If this man can brave violent extremism to save the lives of those condemned by both public opinion and an unjust legal system, I am pretty sure I can stay true to my goal.

The Murder Capitals of the World

The waves of migrants fleeing many Latin American countries is in no small part due to the horrifically high rate of homicide that collectively claims hundreds of thousands of lives annually.

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Source: The Wall Street Journal

With just 8% of the world’s population, Latin America accounts for roughly a third of global murders. It is also the only region where lethal violence has grown steadily since 2000, according to United Nations figures.

Nearly one in every four murders around the world takes place in just four countries: Brazil, Venezuela, Mexico and Colombia. Last year, a record 63,808 people were murdered in Brazil. Mexico also set a record at 31,174, with murders so far this year up another 20%.

By comparison, the U.S.–which has one of the highest murder rates in the developed world–lost 17,250 citizens to homicide in 2016. The same year, the European Union, with 28 countries totaling 513 million people, had 5,351 homicides, while China, with over 1.5 billion inhabitants, had a little over 8,600 murders. Given the amount of shock, fear, and sensationalism such comparative rare murders can elicit, imagine the amount of terror and trauma experienced by people in Central and South America.

In recent years, growing numbers of families from Central America, including women and children, have fled to the U.S. because of horrific violence. Gangs such as MS-13 and Barrio 18 enforce a reign of terror, dictating even where people can go to school or get medical care. El Salvador’s murder rate of 83 per 100,000 people in 2016—the world’s highest—was nearly 17 times that of the U.S.

A new study by Vanderbilt University shows that the strongest factor in predicting whether someone emigrates from Honduras and El Salvador isn’t age, gender or economic situation, but whether they had been victimized by crime multiple times in the past year. A World Bank study found that nearly a quarter of children in one Honduran municipality suffered from post-traumatic stress disorder due to violence.

To make matters worse, pervasive corruption has enabled much if this violence, if not colluded in it: law enforcement are known to be as abusive and exploitative as gang members, and often work in concert with organized crime; politicians or police officers who are not bought are cowed into fear, pushed out, or killed.

With little to no recourse for the violence they face, plus a lack of economic activity to boot, it is little wonder thousands are fleeing for their dear lives in droves.

Source: Wall Street Journal

United States v. Wong Kim Ark

United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.

WongKimArkPlaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.

Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.

The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.

By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.

However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.

Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:

Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.

Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.

Jus Soli

The United States is one of only 30 or so countries to have jus soli—Latin for “right of soil”—better known as birthright citizenship, in which anyone born in the territory automatically has a right to citizenship or nationality.

Jus Soli

Source: Wikimedia

Countries in dark blue offer unconditional or near-unconditional birthright citizenship; the clear majority are in the Western Hemisphere, with Pakistan, Tanzania, and a few Pacific island nations being the few “Old World” countries to have it. Those in medium blue (Australia, France, South Africa, etc.) offer jus soli with some restrictions, such as requiring at least one parent to be a citizen or resident. Countries in teal (only India and Malta) have abolished jus soli citizenship.

In the U.S., birthright citizenship is enshrined in “Citizenship Clause” of the Fourteenth Amendment to the U.S. Constitution, which reads:  Continue reading

Delegative Democracy and Presidentialization

There is no shortage of think pieces out there diagnosing the state of American politics and conjecturing as to where things are heading. But one recently caught my attention presenting a pretty interesting, if disconcerting, analysis and thesis about the changes unfolding in American democracy. It came to me via The Interpreter newsletter, named after the New York Times column by Max Fisher and Amanda Taub. (I highly recommend signing up if you want a regular dose of thought-provoking political analysis in your inbox.) My time is short, so I’ll just share the relevant excerpts:

What happens if that foundational democratic assumption in the separation of powers collapses? What would American democracy become?

There’s actually a term for it: delegative democracy.

“Delegative democracy is an old concept is political science,” Amy Erica Smith, an Iowa State political scientist, told us. It emerged after a series of Latin American dictatorships transitioned to democracies in the 1980s — but to a sort that seemed less than fully democratic.

“There was this collective head-scratching over what sort of democracy we have in Latin American,” said Dr. Smith, who studies the region. “We had free and fair elections that met the minimum criteria for democracy. But they didn’t look exactly like what we think democracies are supposed to be.”

The key difference, the experts decided, was separation of powers. It existed on paper in Latin America democracies, most of whose constitutions were modeled on that of the United States. But, in practice, the courts and the Congresses did what they were told. They delegated their power to the president — hence, delegative democracies.

That, Dr. Smith said, became an important lesson: “Norms matter more than formal institutions.”

These countries, for the most part, were still democracies. But they didn’t function all that well. They had what’s called “vertical accountability” — leaders had to answer to voters, who could kick them out of office — but not “horizontal accountability” from other branches of government.

That tends to degrade governance. There’s little to keep the president from putting her interests first. Corruption and abuses of power become more common. Apolitical agencies get politicized, hurting their ability to function. The president’s support base tends to get preferential treatment; those not in her support base can face discrimination or worse.

(This is a good reminder that, although Americans tend to think of democracy as a binary — you’re a democracy or you’re not — it’s better to think of it as existing on a spectrum. Delegative democracies tend to fall near the fuzzy middle.)

(This is also a good reminder that presidential systems, like those in Latin America or the United States, are unusually prone to backsliding. Delegative democracy is a risk more or less exclusive to presidential systems. Parliamentary systems have more formal, and historically more reliable, ways to check the executive’s power.)

To that last point, there has been interesting, if disconcerting, scholarship on the inherent weaknesses of our presidential system, which is limited mostly to the Americas. In most cases it leads to polarization and gridlock that culminates into coups, civil wars, and other forms of political violence. The only thing that has kept the system more or less uniquely functioning in the United States is the near-universal adherence to democratic norms touched on by Dr. Smith.

Many presidential systems also endure a transformation called “presidentialization”, in which the checks and balances of the system melt away or become folded into the executive. Again from The Interpreter:

For much of American history, voters thought about their Congressional votes as a separate issue from their support for the president. That is no longer really the case. Research shows that Americans increasingly place nearly all votes — for any office — based on how they feel about the president. If they like the president, they vote for members of her party. If they don’t, they punish her by voting against her party.

As voters have come to treat Congressional Republicans like the president’s subordinates rather than as members of a distinct body, Congress has done the same.“When a party becomes presidentialized, the separation of powers ceases to apply, effectively,” Matthew Shugart, a political scientist at University of California, Davis,wrote on Twitter.“Presidentialization has various manifestations, but fundamentally it’s about electoral incentives.”

Republican lawmakers know that their fate is tied to the president’s. If he succeeds, they succeed; if he fails, they fail. That makes Congress less a separate institution than one subservient to the president.

And no doubt the same calculation applies to any party, now that this has become  standard practice among American voters. I am not quite sure where we go from here — what are your thoughts?