Thursday, May 27, 2010


State Senator Russell Pearce is the man who brought us Arizona SB1070. That would be the infamous "Show Me Your Papers Law" recently signed into law by Arizona Governor Jan Brewer and being challenged preemptively by a sizeable number of plaintiffs.

Pearce previous authored another jewel of racial lunacy. That was SB 1108 back in 2008. Today's version is on its way to becoming law as State Education Superintendent Tom Horne and Governor Jan Brewer are both on board with the newly signed Arizona House Bill 2281, the Ethnic Studies law. Horne wants to become Arizona's next Attorney General.

Among the subjective criteria the anti-ethnic studies statute, and Horne's new policy announces, are classes which: 1) promote the overthrow of the government of the United States, 2) promotes resentment towards a race or class of people, 3) are designed primarily for pupils of a particular ethnic group, or 4) advocates ethnic solidarity instead of the treatment of pupils as individuals.

The new law and Horne's new regulation are intended to rid the state of such evils as Tucson's Mexican-American Studies as well as Black Studies classes. These courses are to be banned even where they are optional classes. Well, so much for teaching about Saint Patrick's Day or Columbus Day!

So you see, Arizona has gone about as far as it can go. S.B. 1070 sort of copied federal immigration law, but forgot to include certain important due process considerations which the federal law and practice employs. Oh, it also kind of wants Arizona law enforcement to engage in guesswork to enforce the statute. What was that you ask, "arbitrary and capricious?" get away you're going to bother the powers that be in Arizona. And no Arizona isn't finished, these clowns in government costume can go further.

Today, before the grandchildren began to rise, I saw Senator Pearce on MSNBC. He apparently wants to rid the state of "Anchor Babies." Anchor babies are the American citizens, born in the U.S.A., whose parents are not legally in the nation. He wants Arizona to refuse to issue birth certificates to these children. Who knows maybe someday one of these uppity kids will want to become President of the United States! This ought to stop them

Senator Pearce wants to punish these American citizens because their parents failed his racist "you got be an American to procreate an American citizen" test.
Russell Pearce (at podium)

Pearce relies on In Re Thenault, 47 F. Supp. 952, 953 (D.D.C. 1942), this is a case around which the Senator's apparently diminutive mind cannot be wrapped. Pearce engages in an obvious case of a person hearing only what they want to hear and rushing headlong into taking something out of context. Here is what In Re Thenault says:

"[T]he mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and to our own law, from the very first settlement of the Colonies."

"Those children" which were the subject of the dispute of In Re Thenault were the offspring of diplomats, on diplomatic missions, and that is why they are considered to always be the citizen of the country which sent parents on their duty. The far right's wing nut law division fails to realize that it is this exact legal premise which makes Arizona's senior United States Senator, John McCain an American citizen.

McCain's daddy was an officer in the United States Navy stationed in the Panama Canal Zone with the Senator's feisty mom when John McCain was born.  He was not born in the United States and he is not Panamanian.

When you want everyone you don't like not to be allowed to be here, then you take the words out of context. Unfortunately the new face of the Republican Party is littered with these racists. Those who support this anchor baby rationale include Paul Rand and Brian Bilbray. Where, you ask, did all the Dixiecrats go? Gone to the Tea Party Movement of the Grand Old Party, that's where they went.

Not since yesterday's rant am I reminded of the "Conspiracy Theory" of the Fourteenth Amendment. You remember how dopey I said it was for corporations, without a soul to save or a butt to kick, could be considered to be persons. Well the fellow responsible for this was a former Senator from New York by the name of Roscoe Conklin. Conklin was one of the drafters of the Fourteenth Amendment. When he left the Senate he became a lawyer and got a deep pocket client in the form of the Southern Pacific Railway Co.

Roscoe Conklin
In a little dispute called Santa Clara County v. Southern Pacific Railway, 118 U.S. 394 (1886) he sold the notion that the Fourteenth Amendment intended for the term "persons" to include corporations. He offered up his personal diary as proof. Many of his contemporaries believed that he had gotten away with perjury as he padded his purse with his fees. Nonetheless he prevailed, and that is where the burr under yesterday's saddle was born.

This is important because Senator Pearce tries to use a very similar ruse, popular with the wing nut crowd, to justify the Fourteenth Amendment not applying to foreigners. He offers up a litany of the drafters of the Fourteenth Amendment whose words today appear to support his position.

The big difference is that Roscoe Conklin got the Supreme Court to rule in his favor. Legislative history may be useful in garnering an understanding of a statute or Constitutional provision. Legislative history is not precedent, it does not carry the weight of law, it is not the law. It is often used, as here, to rouse the rabble, not to provide a basis for codifying apparent plain error. Oh, and the Supreme Court rejected the arguments being paddled by Senator Pearce and his racist think tank.  That's the other problem with Pearce's theory,the U.S. Supreme Court ruled against it.  That's the stare decisis problem.

The University of Minnesota has a top rate review of citizenship on line. I took the following, lock, stock, and barrel from:
Wong Kim Ark
The Fourteenth Amendment also eliminated any doubt that persons born in the United States of non-citizen parents were citizens. Such a proposition was confirmed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco in 1873. His parents were native-born Chinese merchants who lived in this country as resident aliens. They left the United States in 1890 and returned to China permanently. Wong Kim Ark made a temporary visit to his parents in 1894, but upon return the following year to the United States, was not permitted to land at San Francisco. The government claimed Wong Kim Ark was not a U.S. citizen but a Chinese laborer, and was barred entrance under the Chinese Exclusion Act (22 Stat. 58). He challenged his exclusion in federal court, claiming citizenship under the Fourteenth Amendment. Justice Gray, in delivering the opinion of the United States Supreme Court, rejected the government's contention that the rule of jus sanguinis -- citizenship by blood relationship -- determined nationality in the United States. To the contrary, both the Fourteenth Amendment and the Civil Rights Act of 1866 (14 Stat. 27) had explicitly reaffirmed "the fundamental principle of citizenship by birth within the dominion." Wong Kim Ark. Hence, children born in this country were citizens without regard to the nationality of their parents. Wong Kim Ark won readmission to the United States.

You can read for yourself what Senator Pearce believes, He forwarded an e-mail from a racist organization containing his ideas. Of course he made the obligatory apology. Then he went on MSNBC and regurgitated this foul thinking. That link is

Hey, Senator Pearce, here's what the lady with the lamp has to say:
The New Colossus

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

The New Colossus, by Emma Lazarus, provides a better view of immigration than does Senator Pearce's weak arguments.

1 comment:

  1. You need to move back to Arizona and help us fight this lunacy! (Of course, look who's talking - I'm preparing to move away from this desert madness!)

    Russell Pearce is nuts - on his best day!