Nguyen for.. what, exactly?

Republican candidate Chuong Nguyen (whom I’ve met, and like), has a new flyer out. It lists a number of ways he says he’s going to change our schools:

The only problem with the first four items in his plan (in the lower left, above) is that the office he is running for is powerless to make any of them happen. Those might all be fine suggestions if he were running for the school board, but the house of delegates doesn’t control where school money goes. Indeed, for his district, the house barely contributes any of the school money it gets.

This is typical of first-time candidates who haven’t been involved in the public process much before. They say things based on their personal notions of what might be a better way to do things, not knowing that they can’t actually make any of them happen. Not only does it mislead the public about what the candidate can do if elected, it risks alienating voters who, when he fails to deliver, lose faith in the process overall. Now, if Chuong were to stick to what a legislator really does and (since he is a Republican) offer an agenda of say, more guns, more restrictions on women, more charter schools, and the other things his party supports, he might still get some votes and, if he won, he could actually vote on those things. But the public is either tired of those issues or, I think, not in favor of Republican thinking on them right now. The public wants more math and science, and more money in the classrooms (actually, they want full-day kindergarten). So, heck, just say you’ll get those things instead of what you’ll most likely really end up voting for.

Anything to get elected, eh?

“Do The Right Thing.”

Everyone is crowing about what they are discovering in the leaked Ashley Madison database and, to some extent, it’s worth crowing about. A local elected official, a former local elected official’s spouse, and a local elected official’s son are all in there, at least apparently. But I am amused in particular by a blogger who seems to have direct access to a live copy of the stolen data, and who says that it contains evidence of criminal misconduct. Not to upset the readership unduly, that blogger is apparently ignoring the fact that, in Virginia, attempted adultery is a crime. No, the schadenfreude here is the political tyro’s favorite kind: that arising from proof that an elected official has violated a campaign finance law. In this case, Black Velvet Bruce Li claims to have mined proof from the stolen data that a candidate for the Virginia state senate is misusing campaign resources by devoting them to activity on Ashley Madison. With a table apparently culled directly from the Ashley Madison data, he suggests that law enforcement authorities can start with that as evidence, “if they’re inclined to do the right thing.”


FirewallNoVa has the skills needed to obtain our own copy of that data too, and to search it for similarly hilarious records. But, we’re not doing that. Why not? Because, you see, in Virginia, taking receipt of stolen property is a crime. Others made this point first, and we think it’s valid. Just because the stolen property reveals a lot of people to be bums isn’t a defense. Law enforcement authorities might want to investigate. They can start with this, if they’re inclined to do the right thing…

Not USMC. USAF, Nat’l Guard & Civilians Stopped Terrorist on Train.

Dedicated to making guff out of even the most basic facts of a story, The Bull Elephant reports that it was United States Marines who thwarted a one-man terrorist attack on a European train today. Easy to understand why they got it wrong (again): their source was Breitbart.


As credible media is reporting, the heroes were a member of the United States Air Force, a member of the National Guard, and two civilians. Great work by brave men. But an absolutely classic example of what happens when a good story ends up being reported by wrap-everything-in-the-flag conservatives: if American service members tackled a bad guy, then it had to be the Marines.

We note, by the way, that all of the men who stopped this guy (armed with a pistol and an AK-47) were unarmed. Waiting already for the first person who says this is another case where things would have gone better if all the passengers had their own pistols. Can’t you just picture the obvious advantages to panicked people all firing at anyone else they see with a gun? Yeah. Me neither.

Birthright citizenship IS guaranteed by the Constitution

Forgive me for the all-caps word in the title of this post; I am not one who likes to make his points by emphasis instead of reason. But, the pleasant folks over at The Bull Elephant like it that way, so I’m following suit as this is a response to Steve Albertson’s post there entitled, “Birthright citizenship is NOT guaranteed by the Constitution.”

For the TLDRs out there: He’s wrong, it is.


For those who had the patience to read his post, and want more details, maybe you’ll read this post too. Albertson cites three sources of law in his discussion: the Fourteenth Amendment; a Supreme Court decision known as “The Slaughter-House Cases;” and the Supreme Court decision in “U.S v. Wong Kim Ark.” In short, here’s Albertson’s take: 14A grants citizenship to people born in the United States, but only upon the qualification that those people be subject to the jurisdiction of the United States; The Slaughter-House Cases opinion includes the statement, “…‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”; and that the Wong decision held that birth in the United States granted citizenship, but the decision was about parents legally within the United States, so the grant of citizenship to children of parents illegally in the United States was not addressed.

Well he’s wrong, for a few complicated reasons, and one really simple one. Let’s do complicated first. If Albertson were right, that “Slaughter-House” excluded “citizens or subjects of foreign States born within the United States” from 14A’s citizenship by birth, the question of whether or not theparents of the newborn were legally or illegally within the United States would make no difference. Anyone a citizen or subject of a foreign state would simply not be a United States citizen, end of story. So how could Wong, who was born in California to two Chinese parents who were not citizens of the United States be a citizen, given that “Slaughter-House” appears unequivocally to have declared him ineligible? Albertson seems to have read the decision in Wong, so he knows. Here’s what he knew, but left out of his post at TBE:

Mr. Justice Miller, indeed, while discussing [in the Slaughter-House decision] the causes which led to the adoption of the fourteenth amendment, made this remark: ‘The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.’ 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together; whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as intrusted with authority to represent their sovereign in his intercourse with foreign states, or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent, Comm. 44; Story, Confl. Laws, § 48; Wheat. Int. Law (8th Ed.) § 249; The Anne (1818) 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838) Taney, 1, 10, Fed. Cas. No. 5,465; In re Baiz (1890) 135 U. S. 403, 424, 10 Sup. Ct. 854.

In weighing a remark uttered under such circumstances, it is well to bear in mind the often-quoted words of Chief Justice Marshall: ‘It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.’

In other words, what “Slaughter-House” said about foreign nationals not being granted citizenship by birth was what lawyers call “dictum,” and dictum is not law. In Wong, the court clearly and directly looked at the statement Albertson relies upon, and ruled with certainty that it was incorrect. To the extent that it was ever authoritative, Wong reversed it. Moreover, Albertson’s claim that Wong held that the children of legal residents were citizens (and thus leaves open the question of children of illegal residents) is simply incorrect. The residency status of Wong’s parents is never addressed. Here, at (alas) full-length, is what the Supreme Court said were the operant facts:

The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873, in the city of San Francisco, in the state of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom.

That’s it. No reference whatsoever to the legality (or lack thereof) of the residency of Wong’s parents. He was born here, subject to United States jurisdiction. That makes him a citizen, Justice Miller’s erroneous dictum in “Slaughter-House” notwithstanding.

Now, before I get to the simple reason Albertson is wrong, I’ll offer a tip to wannabe constitutional scholars, one given to me when I was in law school by a real constitutional scholar: when you are looking at cases involving the Bill of Rights and the Civil War Amendments, particularly 14A, beware of anything much older than the 20th century’s civil-rights era. “Slaughter-House” was decided in 1873. Wong was 1898. Sure, old law is often still good law. Marbury v. Madison, from 1803, endures, although a lot of conservative thinkers still say it was wrongly decided, so maybe they wouldn’t use that one to defend otherwise venerable decisions. But, if you want to stand on firmer ground, you want to find something a little more recent, and something that doesn’t just give you dictum to uphold you.

So here’s the simple reason: That birth in the United States confers citizenship to the child of parents illegally residing here was declared unequivocally, and not in dictum, by the Supreme Court in 1985:

Respondents, a married couple, are natives and citizens of Mexico… [They] paid a professional smuggler $450 to transport them into this country, entering the United States without inspection through the smuggler’s efforts… INS then instituted deportation proceedings against both respondents. By that time, respondent wife had given birth to a child, who, born in the United States, was a citizen of this country. INS v. Rios-Pineda, 471 US 444

Pretty plain, isn’t it? A direct ruling that the child of illegal residents was a citizen of the United States, solely by virtue of being born in the United States. And it’s not dictum, because the couple argued specifically that the citizenship of their children (there were eventually two, when, in the wording of the court, “respondent wife gave birth to a second citizen child”) was a relevant issue to their claim of hardship. The court accepted their children as citizens and conducted its hardship analysis on that basis.

Rios-Pineda was a unanimous decision (8-0, one Justice recusing himself), including that well knownflaming lefty, William H. Rehnquist.

So there it is. The dictum in “Slaughter-House” was rejected in Wong, which did not even consider the residency status of the parents when it found that birth in the United States confers citizenship on the child (unless the parents are under diplomatic jurisdiction), with citizenship by birth unanimously accepted by the court, about a hundred years later.

The question of whether or not anyone born in the United States should be a citizen thereby is, perhaps, a legitimate one. The question of whether or not the constitution currently grants citizenship on that basis, however, is not. It does, and anyone who wants it otherwise will need a new amendment to make it so.

(If you want something even more up to date, there’s a great little briefing on the subject, prepared in 2012 by the Congressional Research Service. I’d say you should always go to something like that for guidance on the law, and not to The Bull Elephant, but that would just be dictum.)

Half a House Divided?



The Senate adjourned yesterday without nominating a new justice for the Supreme Court of Virginia and without drawing new boundaries for our congressional districts. Thus, a federal district court judge will draw those boundaries and Gov. McAuliffe will be free to re-appoint Judge Roush until the next General Assembly sits in January, by which time the senate may be under Democratic control.

Before we consider what kind of legislative nightmare compromise might come from a split assembly, however, let’s take one step back and ask what may be a pertinent question: did the Senate actually adjourn? It’s a question because the constitution of Virginia appears to say they can’t adjourn without permission from the House (and vice versa, for that matter).

Article IV. Legislature

Section 6. Legislative sessions

The General Assembly shall meet once each year on the second Wednesday in January. Except as herein provided for reconvened sessions, no regular session of the General Assembly convened in an even-numbered year shall continue longer than sixty days; no regular session of the General Assembly convened in an odd-numbered year shall continue longer than thirty days; but with the concurrence of two-thirds of the members elected to each house, any regular session may be extended for a period not exceeding thirty days. Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.

Now, one might say that the constitution’s permission requirement only applies to regular sessions, not special sessions. That’s not the plainest reading, but one might say it. However, one would then have to say why it has been past practice for the two bodies to pass a joint resolution, extending their permissions to each other, in prior special sessions. No such resolution has been passed in this special session, causing some Republicans to claim that the adjournment was unconstitutional.

Maybe those Republicans are missing their own point, though. Did the Senate adjourn, or was its allegedly unconstitutional action a nullity? It’s important to know which for a couple of reasons: if they did, in fact, adjourn, how can the House now adjourn without acting equally unconstitutionally? With no Senate in session to give its consent, the House must simply remain in session. If so, is the legislature in session? If it is, can the governor use his interim appointment power to re-appoint Judge Roush, or is he precluded by virtue of there being no interim? Indeed, if the Senate’s adjournment was ineffective, then the Senate and the house are both still in session, virtually eliminating the governor’s interim powers. (Republicans have been using this trick, albeit in a constitutional form, in the federal legislature by recessing, rather than adjourning, then “reconvening” every three days for about a minute-and-a-half, to bar interim appointments by the president.)

Who can raise this question, and where? I predict we will see House Speaker Howell raise it in court, by having the House sue the Senate to compel it to reconvene and adjourn by the dictates of the constitution. I doubt he’ll care about needing the Senate’s permission, but he’ll want to have a court’s ruling that the Senate never adjourned, so as to declare any interim action by McAuliffe to be void.

The Democrats may have adjourned in order to avoid having any presumptive “first draft” of a map ready for a judge to look at, as any such map would have been drawn by the Republican majorities of both houses (and vetoed by McAuliffe). Commentators are saying this is a gamble, in the hope that the judge will simply draw a map with neutral partisan bias in it (which Democrats feel is better for them, as the current map favors Republicans). It’s a clever procedural move, but only if the Senate’s adjournment is legally valid. It may not be valid and, I predict, we’ll hear more about it before the next congressional boundaries are finalized.

Roush Out. No One In.

The House of Delegates nominated Rossie Alston for a seat on the state supreme court. The senate nomination failed, 20-20, with Lt. Gov. Northam breaking the tie with a vote against. Neither house nominated anyone else, so interim appointee Jane Roush is now out of a job, and Virginia has a short-staffed supreme court, with six justices and an empty chair.

Locally, the president of the county bar association, along with nine past presidents, signed a joint letter to the legislature, asking that politics not sully the process.

Because both sides in this dispute have openly acknowledged the fitness and high qualifications of this sitting justice, and because considerations that have nothing to do with this justice appear to be the source of the dispute, her removal from office would be completely unjustified[.]

If you look at the names of the signatories, you will see members of competing political persuasions. This should not be how our legislature sends messages, makes points, or flexes its official muscle.

I’ve met the Republican pick, Judge Alston. He seems like a smart, well spoken, very compassionate man. My personal opinion is that he proclaims a bit more faith in divine guidance than I feel comfortable with in a judge, but that he is nonetheless qualified. But so is was Justice Roush. Even the Republicans say so. And you can think Republican Senator John Watkins for the fact that his party wasn’t able to do a quick replacement (because he was the only Republican to vote “no,” creating the 20-20 tie that keeps the seat vacant). Watkins is not running for re-election. This means the next senate will have to vote on Roush’s replacement. With the majority now in play, this elevates the issue of how we pick our judges to an election-year issue.

This is a hot mess that should have been avoided. Maybe the governor should have taken more steps to obtain Republican approval (apparently, Dave Albo isn’t good enough). Maybe the majority should have put forth their nominee sooner. In either case, deference to what they call a “highly qualified” judge should have taken precedence over playing political football, and our legislature wasn’t up to that. Call this one a fail for the Democrats, but two fails for the Republicans, with the second one being ongoing until at least next year. (Oh, and, not a fail, but an inexcusable way to treat two decent judges who have no blame to take for any of this, but who are being politically molested and/or exploited, all for the sake of someone else’s agenda.)

“Pro-Life” Paraguay is a Killer

Government doesn’t get any bigger than this: a Paraguayan girl, eleven years old, was forced by her country’s laws, against her will, against her mother’s will, and in spite of outcry from every corner of the planet, to deliver her rapist’s baby. Eleven. Years. Old.

At the risk of being absurd, she may be one of the lucky ones, as Paraguayan girls go. You see, Paraguay is a pro-lifer’s dream come true. It is very near to being an abortion-free zone. The United Nations Department of Economics and Social Affairs reports that the sole basis upon which a pregnant woman can legally obtain an abortion there is when she would die without it. So, of course, abortion is almost non-existent there.

Except that it is rampant, and it is killing Paraguay’s girls.

See, here’s the thing no allegedly pro-life person wants to admit to: you don’t save lives when you make abortion a crime, because making abortion a crime doesn’t stop abortions. Paraguay is the proof. In spite of its near total ban on the procedure, Paraguay has an abortion rate of between 100-150 per 1,000 pregnancies (it’s hard to get accurate data, because, you know, people are reluctant to report their own criminal behavior: you can look here for an estimate). For an abortion-free zone, that’s a shocking number. Compare it to the relatively abortion-friendly nation of the United States: the rate here is about 20 per 1,000, or maybe a little less. For a jaw-dropping statistic, look at Sweden: their rate is just over 18 per 1,000, lower, even, than our own. Why is it jaw-dropping? Because, in Sweden, abortion is available on demand. The government (meaning, yes, the Swedish taxpayers) pay for it. Any woman who wants one, gets one. And they have nearly the lowest rate in the world. Read that again: Sweden provides free abortions on demand, and Sweden has nearly the lowest abortion rate in the world. Paraguay? In Paraguay, thanks to making it illegal, abortion is in over five times the demand it is here in the United States.

But it gets worse. Illegal abortions tend to be conducted by unskilled people, in unsafe conditions. That’s why 23 out of 100 deaths of young women in Paraguay are caused by botched illegal abortions. Read that again, too: 23% of young women who die in Paraguay, die because abortion is illegal there. That’s not counting the fetus, which, if one is a pro-lifer, would raise that number to 31 out of 100 (because about half of those 23 abortions would involve a female fetus, raising the female death total to 35 out of 112, or about 31%).

So there you have it. A nation that claims to be utterly pro-life has an abortion epidemic as a result, and that epidemic is a leading killer of its young women. Another nation gives free, safe abortions on demand, and has the lowest rate around.

If you are truly on the side of life, which nation would you say is doing better?

Teacher Endorsements a Dem Wave

The Loudoun Education Association announced its recommended endorsements yesterday (as I understand it, the state organization makes the final choice, though local associations make recommendations that are virtually always accepted). Nearly all candidates in partisan races receiving endorsements are Democrats. Use your own intuition as you read the non-partisan list:

Board of Supervisors:

Phyllis Randall (D)
Andrew Resnick (D)
Mike Turner (D)
Al Nevarez (D)
Kristin Umstattd (D)
Koran Saines (D)
Richard Jimmerson (I)


School Board:

Stephan Knobloch
Eric Hornberger
Joy Maloney
Dusty Sparrow Reed
Jeff Morse
Tom Marshall
Brenda Sheridan


House of Delegates:

Randy Minchew (R)
Elizabeth Miller(D)
John Bell (D)


State Senate:

Jill McCabe (D)
Jennifer Wexton (D)

Dick Black: Dirty Power, Fewer Jobs

Abiding by the enduring policy of right-wing extremists that, if Obama is for it, they’re against it, Americans For Prosperity chose today to announce Dick Black’s pending appearance in Sterling. The reason today was a bad choice (as though any day for Dick Black to be propounding policy could be a good one) is that Barbara Comstock (a Republican), Mark Herring (a Democrat), and Scott York (God knows) all appeared to speak at, and celebrate, the ground-breaking for the Panda Stonewall electric power plant. Stonewall won unanimous approval from the previous Loudoun board of supervisors (my board, which means five Dems, two Republicans, and two Independents all approved it, with no dissenters). Ordinarily, locating a power plant in eastern Loudoun county would be a bad idea. But, this power plant will rely on natural gas, not coal or oil, to run its generators. Joe May, who was also at the groundbreaking, suggested it would even be a good idea to test the pollutants in the air brought into the plant against the pollutants in the plant’s output vents, as the filtration is so powerful, it might actually be cleaner coming out than going in. (I certainly have faith in the cleanliness of the plant: I live less than three miles from the site, down-wind.)

Yet, AFP and Dick Black, never missing a chance to be seen opposing the Obama administration, whether that’s good policy or not, announced that AFP’s “Power Up Virginia Tour” will come next to Sterling, apparently advocating for more antiquated, inefficient, black-lung-inducing coal-fired plants. Here’s the relevant text:

Next Tuesday, Senator Dick Black and Americans for Prosperity President Tim Phillips are leading the charge to stop the EPA’s disastrous “Clean Power Plan” from destroying more jobs in the Commonwealth.

Yup, that nasty ol’ natural gas plant, with its low emissions (and low noise, and low physical profile) is only going to bring hundreds of construction jobs to the county, along with permanent plant staff, while adding over 700 megawatts of locally generated power to the grid. County planners estimate that, in its first decade of operation, the plant will bring billions of dollars into the local economy.

Barbara Comstock, Mark Herring, and Scott York celebrating a clean-power, job-creating project that Dick Black hates because Obama likes it.

Clean power, more jobs, local revenue: of course Dick Black is against it. While Republican Barbara Comstock is celebrating it, Republican Dick Black is declaring war on progress. I’m no great fan of the politics of either person, but one of them is, at least, admitting to the existence of a good idea, in spite of it being consistent with the policies of the president, while the other is denying that anything can be a good idea, if it is consistent with the policies of the president.

To a certain kind of voter, dirty power, fewer jobs, and lost opportunity are not too high prices to pay, if they buy some fight against Obama. To the rest of us, the possibility that modern technology can lead to employment, clean air, and revenue, is something we’re willing to consider, even if the president approves.

Where Was The Outrage Then?

South Carolina’s governor, Nikki Haley, has signed legislation calling for the removal of the CSA battle flag from the grounds of her state’s capitol.

Her critics say that she is wrong. They say that the CSA battle flag is not a symbol of racism, of oppression, of white supremacy, nor of hate. They say she is taking away their heritage, stealing their history, and misleading the world about what their cherished symbol means. Their outrage is loud and fearsome.

But where was their outrage when that flag was carried in marches by men in white hoods?

Where was their outrage when that flag flew next to a twisted cross?

Where was their outrage when the killer of innocents waved that flag in his own hands?

Her critics complain that she is taking something of theirs away, and that she is doing it for all the wrong reasons. Why did they not complain when it was taken up by all those others?

Shameless Dems “Flaunt” Popularity

Yesterday, ActBlue (the any-Dem-is-a-good-Dem fundraising Web site) sent this tweet:


Well, that was just too much for the National Republican Senatorial Committee, so it decided to put its foot down and send this e-mail:



Yup, you read that right: thousands, tens of thousands of donors, averaging thirty-one dollars each, aren’t grassroots Americans supporting the candidates they like. Nope. That’s, “The Obama machine.” ActBlue let the world know that all those people were pulling one or two Jacksons out of their pockets to help shape our politics, and (by the axiom that, if the Democrats do it, it must be wrong) the Republicans actually seem to want us to be ashamed of ourselves because of it.

Our fellow Americans on the right don’t seem to get it: when the voters start backing a party in numbers this large, that’s no one’s “machine.” That’s democracy in action.

The fact that the NRSC wants us to be ashamed of it is something to think about.


Greece Will Shape Angela Merkel’s Legacy

A Greek exit from the euro zone could lead to a humanitarian crisis on Europe’s southern rim, spark contagion in euro countries that are only just emerging from years of deep recession, and stoke a fiery new debate about German austerity policies and Merkel’s handling of the crisis.

Read the full story at the South China Morning Post.