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2019-07-11 07:00 by Karl Denninger
in Editorial , 195 references Ignore this thread
Citizenship, The Census And Statutory Construction
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There are basic rules founded in simple language that govern statutory construction.

One of them is that shall means shall and may means may.  Likewise shall not means what it says as well.

The next is that a claimed "interpretation" that leads to an absurd result, absent demonstrated intent to obtain said absurd result, is always wrong.  In other words the writers of Statutes and Constitutions are presumed to have not intended a facially absurd result to come from their actions.

Take the Second Amendment.  The language is clear: SHALL NOT be infringed.

There are those, predominantly lefties, who try to argue that the entire thing is invalid because it would be an utterly absurd result if it allowed you to keep and bear a nuclear missile.  Therefore, they can ban any gun they want as the entire constraint is void.

Indeed it would be absurd were I to be able to walk around with a nuclear weapon in a briefcase. Incidentally, with modern "suitcase nukes" this is only mildly implausible on a technical level; it is indeed possible to build a modern low-yield nuclear weapon that could be carted around in a wheeled suitcase.

Therefore that can't be the construction envisioned by the authors.  This does not, however, mean the 2nd Amendment is void for stupidity.  It means you must continue to search for that which is not absurd and clearly intended by the language therein.

That's easy in this case.  The Second Amendment reads, in full:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

Now let's look at Miller.  If you read the decision you'll find a reasonably-fair analysis on its face; that Militia means most of the time ordinary citizens and occasionally soldiers.  It then goes on to claim that it is not within judicial notice that a short barreled shotgun is any part of ordinary military or militia equipment.

That sounds like straight-forward statutory construction and thus the decision that flowed from it except for one problem: The only reason it wasn't within judicial notice that a short-barrel shotgun was a military or militia weapon is that the government intentionally concealed the fact that such a weapon was ordinary military equipment, specifically, infantry equipment!

How do we know this?  Because the government in fact ordered a large quantity of these very sort of weapons for use in trench warfare a good long time prior to Miller being heard.  The US Government knew this and they lied to the court.

So the Supremes in fact decided based on statutory construction but the government committed active fraud before the court.  They not only got away with it but every gun-related decision since and virtually every single federal gun law is predicated upon, and unconstitutional without the predicate of Miller.

A thing procured through fraud is not yourssuch a decision or benefit is always void upon discovery of said fraud.  Every single existing federal gun control law is in fact void for fraud going all the way back to Miller but nobody has the balls to insist that the actual Constitution and law be enforced.  We the people should do exactly that by any means necessary -- but we haven't thus far, and likely won't.

Nonetheless a nuclear bomb not a militia or infantry weapon.  A howitzer is, as were cannon at the time of the Revolution; the latter was privately owned, is commonly used by infantry and militias, and is crew-served.  Both, and anything lesser such as a machine gun or short-barrel shotgun, clearly are covered by the Second Amendment -- but a suitcase nuke or ICBM is not.

Now let's look at the Census question in this light.  There are those who claim that an attempted reliance on the 14th Amendment to deduct non-citizens from the Census is "pretextual" and thus a nonsense read of the Amendment.

The ********** who wrote this, Matthew Franck, and the entire Witherspoon Institute should be instantly stripped of all credentials and claims to authority.  His argument is flat out insanity and a knowing, intentional fraud because for it to hold you must violate the rules of statutory construction in that your read of construction cannot lead to an absurd result.

Let's assume that tomorrow 20 million people from Mexico flood into California.  This would make the population of California approximately 60 million, out of 350 million in total.  This would mean under apportionment they would have 75 seats, approximately, if that argument holds out of 435.

Ok, what if 200 million people were to flood into California over a 10 year period?  None of them are citizens and yet now one state, under that "read" of the Constitution as amended, results in it having forty-five percent of the entire House, or one hundred and ninety-six seats.

The entirety of the rest of the nation no longer has any representation at all; the entirety of the United States House is now beholden to and both can and will pass laws on the predicate and demand of non-citizens.

This outcome is patently absurd as to "interpret" the Amendment this way means we no longer have a nation that is bounded by the Constitution and its representative process in any form.  In other words this "interpretation" is an effective repeal of the entirety of the Constitution, not only as originally written but as amended.

That's absurd and thus cannot be the intent of the language in the 14th Amendment.

Fortunately we don't have to go there because the 14th Amendment came after the 13th, which means that the other argument raised in the claim of "pretext" is that a state might deny someone the vote on the basis of race.  The 13th Amendment underlined this as "no, you won't" and then we went further and removed two other potential arguments for that position with the 19th and 26th Amendments.

Further, the other remaining argument -- that some states deny convicted felons the right to vote, was disposed of in the 14th Amendment in the first instance.

So what's left?

The 14th Amendment clearly intended to apportion House seats only among the population that were citizens, whether here legally or not.  A person gains representation if an immigrant when they are naturalized.  To apportion seats based on non-citizens predicated on the language of the 14th Amendment is facially absurd as it would lead to a circumstance where in a time of war, for example, if an enemy could manage to get enough of their people here they'd be able to take over the nation's government via The House without firing a single shot!

Further the original definition of apportionment excluded Indians not taxed and also declared that the enumeration was to be of free persons.  A person who is here in violation of federal law is not free; they are by definition on the lam!  Therefore original intent was clearly to count citizens, naturalized or native-born, and then add in slaves at 3/5th of a person so-enslaved.

Indians, even though present in the United States and lawfully so as they were legally permitted to be here under treaty were not counted!

In addition a representative Republic by definition has the people in a given district voting for their Representative.  To represent people who can't vote for you or kick you out of office in the next election because they're not citizens is equally absurd; does a representative from California represent people in New Mexico?  Of course not, yet to apportion representatives for non-citizens is exactly the same thing since those people can't vote for or against said Representative.  It is reasonable to represent those who cannot yet vote due to youth but will be able to with the passage of time; it is patently absurd to represent people who can't vote because they're not citizens, just as it would be patently absurd for a representative in California to "represent" someone living in New Mexico or Oregon who also can't vote for or against that specific Representative.

Best estimates at present are that about 14% of California's population is non-citizen.  This is an outrageously large percentage and means that California has roughly seven House votes that are, by definition, in this "absurd outcome" category and do not belong to California.

While it's certainly unlikely (to put it mildly) that 200 million people would flood into California that are non-citizens the percentage of dilution of representation isn't the point.  Legitimacy of our government is predicated on "one citizen, one vote."  Since we have 435 members of the House and proportional representation that proportion must be identical for citizens since non-citizens cannot vote at all.  Having non-citizens afford the citizens of a given state superior representation per-capita, no matter by how much is unconstitutional.

Again: To apportion House members including non-citizens, who cannot vote, assigns superior US House representation on a per-citizen basis in the states where said non-citizens reside and for this reason is not permitted.  In fact such an action constitutes ELECTION FRAUD.

The census question not only must be asked those who are non-citizens must be deducted from the count of the census before apportionment takes place.  Period.

If this is not done then our government is entirely illegitimate, it is of no force and effect, and we the people, who number 330 million against the 545 who think they can dictate otherwise need to hear from the 330 million loudly and clearly that they will either change their position and adhere to the Constitution, vacate their offices peacefully or the Constitutional contract has been violated by said 545 and We the People reserve the right to remove said illegitimate government and replace it with one that is legitimate and has the consent of the citizens of this nation.

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Incidentally, with modern "suitcase nukes" this is only mildly implausible on a technical level; it is indeed possible to build a modern low-yield nuclear weapon that could be carted around in a wheeled suitcase.

One of my favorite crazy ass weapons from the cold war has to be the Davy Crockett. For those not familiar with this device, it's a nuclear device with yields of up to about 1 kiloton. There are plenty of pictures of one of these things sitting atop a rocket launcher that's bolted onto an army jeep. How desperate does your situation have to be if you're using a Willys jeep as an nuclear delivery platform?

"I'd like to live just long enough to be there when they cut off your head and stick it on a pike as a warning to the next 10 generations that some favors come with too high of a price." -Vir Cotto Babylon 5
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AMEN! The time has now come.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

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the problem is that of the 330 Americans, 80 million like and benefit from the current system massively, 40 million need the system, 10 million desperately need the system, 60 million aspire to be a part of the system. of the remaining a significant percentage work so long and hard having their backs against the wall with no pensions or other guarantees that they do not have the time and energy to take any risk. another percentage hates the system and their fellow Americans and have exiled themselves from the productive class and will do nothing to perpetuate the current system. then there are the old and inadequate. once set overlap occurs the problem becomes clear. the fear focuses with the realization of who is truly necessary and who is not.

this is the answer as to why Americans will not even peacefully rise up and protest effectively.

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What a coincidence that scotus just ruled against the citizenship question because the gov'ts argument seemed false. Perhaps they can be convinced to review and overturn miller for the same reason.
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@Stee_man -- the math is inescapable.

If you apportion US House members including non-citizens (who cannot vote) then the pretext of representation on an apportioned basis is false. A California resident currently obtains approximately 15% more representation than apportionment allows; this is blatantly unconstitutional.

Since apportionment is an essential element of our Constitutional Republic should that be allowed to stand It's over folks; we no longer have a Constitution and we no longer have a legitimate government.

What you do with that information is up to you but not ONE single act of the US House (and therefore NO statutory or other actions, including the imposition of taxes or the spending of any money by the government) is legitimate and since that turns them all into a band of armed thugs, well....

You decide.

Winding it down.
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Amazing it was easy for one president to remove it, but to put it back...
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This discussion also makes me question if citizen children should be counted for apportionment purposes, since representation can be deducted for abridgment of anyone over 21 who is a non-citizen voter, let's take your thought experiment further...

60 million come in but are not counted...the House doesn't tilt towards California. But each of those couples has two kids, so you get 60 million anchor babies who we give citizenship to by virtue of where they are squated out.

The net result is that California still ends up with all the seats apportioned since under current reading of the law they are 'citizens' just not voting age citizens.
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Birthright citizenship is a separate and equally serious problem but you cannot address it with this.

Winding it down.
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I guess my thinking is if you adopt a strict reading of this, and don't apportion for anyone under 21 (amended 18) years of age, Citizen or not, that means that even if the Birth Right issue is never resolved, those kids can't be used by the politicians as a proxy for their parents no matter what, at least until they reach voting age.

By the time they are of voting age, they are their own people with their own values, hopefully 'naturalized' native born.

I don't really see a solution for that problem, no one seems inclined to open the can of worms to stop the 'birthright' citizenship, let alone strip it from the tens of millions already here.
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Apportionment means PROPORTIONAL.

Counting or not under 18 if citizens doesnt change apportionment since in general over the population people tend to have the same percentage of kids; differences from state to state are likely small enough to be statistical noise.

Counting non-citizens, legal or not, DOES change apportionment. It results in a state with a higher percentage of non citizens having the divisor PER VOTER being lower than a state with fewer non-citizens. In other words your representation per-citizen is superior in a state with a higher non citizen count and your vote for the House carries more weight. Statistically this is LARGE; it's SEVEN seats in CA!

That's unconstitutional - period - apportionment requires the divisor be IDENTICAL.

Winding it down.

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I don't understand Trump's new plan to obtain the information elsewhere. Will he use random sampling to adjust the numbers? A better plan would be to just sign the executive order and mandate E-verify. And an executive order that mandates paper ballots and voter id for voters. I'm not sure that even with a voter ID that the Democrats wouldn't falsify registrations for illegals though.

I think its time we ask ourselves if we still know the freedoms that our founding fathers intended for us. Ronald Reagan 1964
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