An Open Letter to Dante on the Great Man’s Place in Hell

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Sr. Dante Alighieri

1 Via Paradisio

Florence,

Italy

Dear Sr. Alighieri,

Putting aside that you have been dead for 700 years, I hope this letter finds you well.

I write as a pilgrim of the sort who was guided through the depths of hell in your blockbuster poem, The Inferno. People are still reading the poem today, and I am one of them.

I regret troubling you after all this time, but facts have come to light in our century about a sinner, a certain Great Man. His sins are so singular and prodigious that I am compelled to ask your advice about his assignment in hell.

Your vision of hell is quite clear. Hell exists to punish sinners eternally in proportion to their sins. It involves merciless retribution. Many sinners are placed in a circle around which they trudge and are tormented ceaselessly along their way. The torments are designed to mock the sins committed. This is the kind of “get what you deserve” system that our Great Man would appreciate.

The first few circles at the top are for minor sinners. The latter ones, further down, are reserved for truly odious people. But I confess I have struggled to place the Great Man in his proper circle. He seems to fit in so many at once.

The greedy get what’s coming to them in the fourth circle. Half of them clutch a big rock at their chest and rush in one direction, only to crash into those from the other half coming in the opposite direction. They fall, cursing the other, but then pick up their treasure rock and circle again until the next crash. The Great Man is certainly greedy, and he exploits his position to enrich himself and his family. But stopping at the fourth circle seems inadequate.

In the seventh circle, tyrants given to violence and plunder, who “brought warfare to the public ways,” are boiled in a river of blood. Liars and fraudsters are punished in the eighth circle, where they are condemned to quarrel and exchange blows eternally with their neighbors.

It is in the ninth circle, as close to the absolute pit of hell as a sinner can get, where betrayal in all its ugliness gets what it deserves. Betrayers of country are suspended in a frozen lake with heads, arms, and legs protruding randomly. On the worst of these traitors, Satan himself gnaws eternally.

The Great Man’s sins have broken the mold, as he says, like nothing anybody has ever seen before. So, venerable poet, you must see my problem. Others may disagree or have their own equally valid list, yet in my opinion here are the sins he has committed that will require a reckoning.

The Great Man insults those who disagree with him in the coarsest terms, much like a schoolyard bully. His example has undermined the tone and quality of American civil and social discourse.

He has promoted the fiction that we have been invaded by immigrants, when in fact we benefit immensely from their contributions. This has caused a dehumanization of innocent people of color and foreign birth, marking them out for suspicion, harassment, and fear.

He has shamed us in the international community by shredding the rules-based order, disrespecting international institutions, insulting and misusing our allies, and reverting to a “might-makes-right” behavior that the world has evolved beyond.

He has installed sycophants, incompetents, and clowns into high public office, not because he believes they will make our government more responsive or just, but because he knows they will create a debacle, upend decades of science, and destroy the independence of our agencies.

He has converted the proud Department of Justice into the shameful Department of Retribution and sought to pervert the courts and the rule of law.

He has put masked and armed government agents into our streets, who kill us upon the slightest pretext.

Because he is so vain that he cannot imagine losing unless he was cheated, the Great Man has impugned the electoral process, tried to induce election officials to manufacture votes, and when this failed duped gullible followers into attacking the seat of our government, defiling, injuring and killing as they went. But to the Great Man these were not crimes because they were done in his service.

As you must realize, Sr. Alighieri, sins of this magnitude must be carefully considered. Those of us who are interested will want to know where to find the Great Man for the rest of eternity. It is certainly possible that big changes will have to be made in hell to accommodate him – maybe even his own special ring. He would like that.

But on that question, I will await your kind reply.

In all respect,

Your Pilgrim

 

*Image by Vitosmo on Wikipedia https://en.wikipedia.org/wiki/File:DanteDetail.jpg

Land Ownership Rights Threatened by the Legislature

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The ability to acquire cheap, fertile land drove much of American history. Ordinary people – many of them recent immigrants – could obtain land on which to sustain families with very little more than hard work. Land in America is generally owned in “fee simple,” meaning that the owner possesses every aspect of ownership and every possible use. But recent efforts around the country by extractive industries and their legislative allies are threatening this historic type of land ownership. We saw it here in West Virginia during the 2024 legislative session and may see it again in the upcoming session.

Ownership in fee simple enables the landowner to retain the property while conveying pieces of his ownership rights to another, such as by leasing the property or selling the right to develop minerals. An owner can also sell the right not to develop the property through a land protection agreement. In that way he can ensure that the property remains farmland or naturally beautiful land forever. Large timber, coal, and gas companies hate this because land protection agreements remove land from the market that could be exploited by them for tremendous profits.

There are two types of land protection agreements, sometimes called “conservation easements.” Both are private contracts made voluntarily by the landowner. One type of agreement is made between the landowner and a government-supported entity, like the Nicholas County Farmland Protection Board. In that type, the landowner keeps the property, but sells the right to use or develop it for non-agricultural purposes. The owner receives income, while the Farmland Protection Board – which buys the development rights — ensures that the land remains farm or agricultural land forever.

A second type of land protection agreement does not involve the government. This type is made between a private landowner and a charitable group like the Land Trust of the Eastern Panhandle to preserve the natural character of valuable scenic or historic land by prohibiting development, including commercial mining and timbering. In this type, the owner donates the development rights and gets a tax deduction for the value of the donation.

Both types of land protection agreements are voluntary choices by the landowner, and both generate income to the landowner while preserving the character of the property for future generations.

But in 2024, an effort was made in the West Virginia Legislature to limit the ability of landowners to protect land and generate income while doing so. The irony of this is palpable. Our Legislature is controlled by Republicans, who purport to be the political party most interested in limiting government intrusion into private affairs.

The vehicle for this effort was SB 822, which remained alive until the last day of the legislative session when it was removed from the Senate’s calendar. That bill declared it to be state policy to promote land and mineral development and timber harvesting “for the economic benefit of the citizens of the state.” It went on to declare that any land protection agreement interfering with mineral development and timber harvesting would be void if its term exceeded 20 years.

If it had passed, SB 822 would have removed the historic right of landowners to determine how to use their land — or not use it. It would also have eliminated the land protection agreements used as a tool by land trusts to protect land into the future. This is because a federal tax deduction would not be available for the donation of a conservation easement that is not perpetual. And a land protection agreement that becomes void after 20 years would certainly not be perpetual. With no tax deduction, these land protection agreements would simply cease to be attractive to landowners.

The West Virginia effort coincided with the introduction of HR 2773 – the “Landowner Easement Rights Act” — in the U.S. House of Representatives. That bill would have forbidden the Secretary of the Interior from entering conservation easement agreements with private landowners for longer than 30 years and would have permitted the renegotiation of existing easements with a longer term. That might happen when, for example, an oil company makes a subsequent owner of the protected land an offer he can’t refuse. The feeble justification for HB 2773 was concern for future owners who may want to do something else with the land.

I hope the reader will excuse me for not believing that justification. When have large extractive industries been primarily motivated by the land ownership rights of others, particularly those who haven’t even acquired ownership yet? To make sense of this, you have to follow the money. The effort to undermine land protection agreements – and land ownership freedom — is purely driven by the profit motive of these industries, and they are wrapping that unattractive motivation in the cloak of concern for the future landowner.

The American Legislative Exchange Council (ALEC), a right-wing think tank that produces model legislation available for use by state legislators, recently considered model legislation limiting conservation easements to 20 years. The argument made in support was that landowners are somehow defrauded by government, land trusts, and “radical environmentalists” into surrendering their development rights perpetually, thereby binding future generations and freezing the land’s use “according to today’s practices and societal goals.”

To their credit, ALEC recognized a bogus policy idea when they saw it and refused to adopt the model legislation. Reference to it has been completely removed from ALEC’s website.

Wags in Charleston often refer to the West Virginia Legislature as a “bad idea machine.” Interfering with a landowner’s property rights and destroying the land protection agreement in the process is a colossal bad idea. Let’s hope that the Legislature resists the temptation to inject government into private land ownership simply to satisfy big industry.

Let’s Revive West Virginia’s Future Fund

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Several states with economies dependent on natural resource extraction have had the foresight to create sovereign wealth funds. These are investments funded by a set percentage of severance taxes or royalties collected by the state. These states recognize that one day their natural resources will be exhausted. Sovereign wealth funds are long-term investments which usually have limits on the purposes for which governments can spend the money. West Virginia had a sovereign wealth fund called the Future Fund. But the Future Fund died in 2023 with a whimper, not a bang.

The largest state sovereign wealth fund is Alaska’s Permanent Fund, which has over $83B in assets. It is funded by at least 25% of mineral royalties collected by the state. The APF has two accounts, one permanent nonspendable account and one into which earnings from the permanent fund are deposited. The legislature makes appropriations from the earnings account, but the main use has been annual dividends to all Alaskan residents, which have reached as much as $3,200.

Another prominent sovereign wealth fund is New Mexico’s State Investment Council. It consists of four permanent funds built on royalties and taxes from natural resources, as well as income from the sale or lease of public lands and minerals. Income generated by New Mexico’s funds contribute around 15% of the state budget and saves each New Mexico household around $1,300 in taxes each year.

West Virginia’s Future Fund was created in 2014, promoted strongly by former Senate President Jeff Kessler, who introduced legislation four times before it was finally passed. In 2014, Kessler said “We haven’t planned for the long-term future of this state. It’s always been short-term, Band-Aid solutions. This will put us on the path of long-term prosperity in using the law of simple economics of supply and demand that West Virginia is sitting on what the rest of the world needs.”

Future Fund legislation stalled several times because legislators were concerned about earmarking money for future use that could be spent to address present needs. This is a legitimate concern, one that is shared by everyone who tries to save for retirement. But as a result, Future Fund deposits were hedged with so many conditions, it never got off the ground.

For example, no deposits could be made in any year when the balance in the state’s separate Rainy Day Fund was less than 13% of the general revenue fund budget. No deposits could be made in years when the Governor’s general revenue fund estimate relied on transfers from the Rainy Day Fund. And any deposits made in fiscal years when mid-year spending reductions or hiring freezes were required because of revenue shortfalls would be retroactively removed from the Future Fund.

A good way to think about this lack of legislative courage is to imagine the guy who promises to save for retirement — except if the electric bill is too high, or if he might need the money for something else. Guess what? He never saves for retirement.

It might be too much to expect legislators to have the kind of discipline from year to year that is necessary to build and preserve a sovereign wealth fund. This is especially true in a poor state like West Virginia that experiences boom and bust natural resource production cycles. But that is also true of many of the states which have sovereign wealth funds.

The answer is a constitutional amendment that removes from the legislature any discretion not to make deposits into the Future Fund. For example, Alaska’s Permanent Fund was created when Art. IX, Sec. 15 of the Alaska Constitution was ratified. North Dakota’s Legacy Fund is supported by 30% of total revenue derived from taxes on oil and gas production or extraction. This contribution is mandated by the North Dakota Constitution, Art. X, Sec. 26.

A constitutional amendment is the way forward for West Virginia. It wouldn’t need to require a huge annual contribution, maybe only 5% of severance tax collections. But whatever contribution is selected must be guaranteed in the constitution – beyond the reach of the legislature. How the income from the Future Fund would be spent, and when spending could begin, could also be determined in the constitution.

The political value of solving this problem with a constitutional amendment is plain. An amendment adopted by the people is direct democracy in action. No legislator could be criticized for giving the people a chance to decide this important question. After a particular level of annual contribution is selected in the amendment, that contribution would no longer be a political football.

As the balance in the Future Fund grows, and its income begins to reduce the tax burden on West Virginians, the Delegates and Senators who supported putting the amendment on the ballot will have created a real legacy they can be proud of for the rest of their lives.

Donald Trump, The Occupier

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I don’t mind admitting that when I was in law school I had a little trouble with all those Latin words — res ipsa loquitur, and so on. It now appears that President Trump is having his own troubles with Latin words. He recently declared a bogus emergency in Los Angeles and not only nationalized the California National Guard without the participation of the Governor, but stationed active-duty Marines in the city. Trump’s Latin problem is with the phrase posse comitatus.

Under ancient English common law, the sheriff of any county was obligated to call out able-bodied men to assist him in defending the county against the King’s enemies and to keep the peace. This was the posse comitatus. Down to our own time, the issue has become who may not be called out to assist regular law enforcement in keeping the peace. Our current distaste for having the military enforce civilian law has strong roots in the 1770 Boston Massacre, where British troops were stationed in Boston to quell civil unrest and fired on a heckling crowd.

The Posse Comitatus Act was passed in 1878 at a time when federal troops were being used to prop up Republican-controlled governments in former Confederate states during Reconstruction. As amended, the Act reads

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

But the Constitution gives Congress, not the President, the power to call out the state National Guard for limited purposes. When Congress has not acted, the President can call out the Guard only in compliance with a federal statute through which Congress has delegated its power.

In 10 U.S.C. § 12406, Congress has delegated to the President the authority to call into federal service the National Guard of any state whenever (1) the country is invaded by a foreign nation, (2) there is a rebellion or the danger of a rebellion against the authority of the federal government, or (3) the President is unable with the regular force to execute federal laws. The order calling out the state National Guard must be issued by the Governor of the state involved.

How then does Trump justify what he has done in Los Angeles? He issued a proclamation based on the statute entitled “Department of Defense Security for the Protection of Department of Homeland Security Functions.” He did not claim that the country was being invaded or that he was unable to execute immigration laws with the existing federal force. Instead, he claimed that acts of violence and disorder directly inhibit the execution of federal laws and therefore constitute “a form of rebellion against the Government of the United States.”

The sinister thing about Trump’s proclamation is that it did not refer to Los Angeles. Instead it referred to unnamed places where protests against Federal functions are occurring or are likely to occur “based on current threat assessments.” It did not identify the specific California National Guard units that were deployed. It directed the Secretary of Defense to coordinate with the “Governors of the States” in identifying and ordering into service the appropriate members and units of the National Guard. Clearly this order was designed as a predicate for a geographically unlimited use of National Guard troops.

One can deplore the acts of violence that have taken place in Los Angeles – which I certainly do – without accepting the incredible exaggeration that they constitute a rebellion against the United States. A rebellion is legally understood to be an organized attempt to change the government or leader of a country. Trump’s misuse of the concept is a dangerous, expansive interpretation of federal power that we cannot allow to be normalized. Trump is spoiling for a fight and doesn’t care what laws or guardrails he rolls over.

Neither the Governor of California nor the Mayor of Los Angeles were consulted before Trump’s power grab. In fact, they both forcefully objected to federalized National Guard troops being deployed on the streets and asserted that local authorities had sufficient resources to handle the unrest. The State of California has sued the Trump Administration, alleging Trump was without power to usurp control of the California National Guard without involving Governor Newsom, and that he is also without Constitutional power to intervene in the state’s enforcement of its own criminal laws.

In response to California’s suit, on June 12 a federal court in San Francisco issued a temporary restraining order against Trump directing him to “return control of the California National Guard to the Governor of California forthwith.”  The court focused first on whether Trump’s proclamation met the terms of 10 U.S.C. 12406. It did not. The court ruled there was no “rebellion” in Los Angeles because there was no armed, organized attempt to overthrow the government underway.  On Trump’s ability to execute the laws, the court ruled that the statute relied upon by Trump “does not allow for federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the law.” It requires him to be unable to execute the laws.

The court further ruled that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws.” The police power is one of the primary powers reserved to the states by the Tenth Amendment.

Late in the evening on June 12, a federal appeals court stayed the immediate effect of the lower court’s restraining order pending consideration of the issues. The effect of the stay is to allow continued federal control of the National Guard until further order of the court.

None of this litigation addresses the deployment of Marines, which dangerously raises the stakes. The statute Trump has so far relied on, 10 U.S.C. 12406, does not authorize him to deploy the federal military against civilians — only to federalize National Guard troops. What would allow this is a statute called the Insurrection Act. It authorizes the President to use the military “whenever he considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

Trump has hesitated to use the Insurrection Act because he will be unable to show in court that the use of Homeland Security agents and California’s regular law enforcement personnel are insufficient to enforce the laws in the normal way.

Trump’s disregard of the nation’s laws and protocols, to say nothing of ignoring the historical significance of using federal troops against civilians, is wildly out of balance. He seeks to flex federal muscle for political purposes, not to address a rebellion or an insurrection. There is, of course, nothing of this sort happening in Los Angeles. Everyone can see that. Trump is nothing more than a lawless occupier. Unless this reckless military venture is stopped now, he will occupy other cities.

 

 

What is “Due Process” and Why Should We Care?

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Recently, ACLU attorneys representing the alleged Venezuelan gang members who were deported in chains to El Salvador by the Trump Administration have asserted that these people were denied due process. But this legal concept seems elusive and hard to define. And we have so much else to worry about. Why care about this?

Trump’s rough deportation of these people occurred without determining whether they were engaged in criminal conduct or were even members of the gang. This shouldn’t surprise us. History shows that it is often the most disfavored or despised members of society whom a mob, or occasionally our government, thinks are unworthy of the basic protections the rest of us take for granted. But, hey, they had tattoos. That must count for something.

Due process is nothing more than following established rules and procedures before depriving someone of life, liberty, or property, and fairness in the penalty when laws are broken. In other words, due process requires the penalty to fit the crime. The source of our right to due process is the Fifth Amendment, which restricts the federal government from peremptorily punishing someone for a crime using irregular procedures or, as in this case, simply no procedures. The Fourteenth Amendment expands these protections to the way state and local governments operate.

Lynching is an example of the complete breakdown of due process. Our history, even into the “civilized” 20th Century, includes hundreds of lynchings of Black Americans. These victims lost their lives to the blood lust of mobs who bypassed the legal system’s method for establishing guilt in the regular, lawful way. As a nation we are still living down that shame.

Keep in mind that due process doesn’t prevent punishment where punishment is appropriate. It merely slows down the process a bit and requires the government to have its facts straight. Just maybe we will discover that the person of interest isn’t really the right one or did something far less serious than we assumed at the beginning.

That might be the case with respect to some of the deportees Trump flew out of the country in defiance of a court order. That court order would have required nothing more than delaying deportation until individualized deportation hearings could be held to get the facts straight.  The deportees were already in custody and could not have committed additional crimes, even if they were guilty of earlier ones.

One federal appellate court judge reviewing the situation said that a hearing to determine gang membership was required and that “even Nazis got better treatment under the Alien Enemies Act than has happened here.”

Some will argue – incorrectly – that aliens in this country unlawfully aren’t entitled to the protection of Fifth Amendment due process. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

None of what I have said should be taken as a defense of criminal gangs or aliens behaving in unlawful ways. We should allow law enforcement to do its job. Sometimes imprisonment is the penalty for committing a crime. Sometimes it is deportation. But our legal system, until recently the envy of the world, requires proceeding in deliberate ways that do not make law enforcement itself unlawful.

So, why should we care about due process? Just wait until your child or grandchild is rounded up in a drug bust simply because she hung out with the wrong people and had a tattoo on her arm. Then you’ll understand.

Civil Liberty and Football

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Lately I have been spending too much time watching football on television. It has helped take my mind off what might happen to civil liberty during the upcoming Trump administration. By civil liberty I mean the kinds of activity that are permitted or outright protected by our Constitution. Between beers – or maybe because of them – I realize that football provides some metaphors for talking about civil liberty in our political moment.

One thing I’ve noticed these days is that Americans don’t get too excited over the loss of civil liberty when it is other people who are losing it. Contrast this with the period in the 1780s when the draft Constitution was being debated in the states. It was all anyone could talk about. And ratification would have been rejected if a bill of individual rights that protected everyone had not been added.

Constitutions set out the fundamental structure for the operation of a society, which in our case includes the rights individuals can enjoy. But none of these rights is absolute. Because our Constitution is a political document, not a sacred text brought down from the mountain, the meaning of a particular provision can change depending on whether it is in the political spotlight, and whose claims to meaning are supported by political power.

So where is the boundary line for the meaning of fundamental rights at any moment? The appropriate football metaphor is “line of scrimmage.” The tug and pull of politics have moved that scrimmage line on civil liberties back and forth over the years. Sometimes this results in a “new” interpretation of the Constitution moving the line in one direction. The recent loss of a woman’s right to choose is an example. At other times powerful political movements result in constitutional amendments moving the line in a different direction. Prohibition and women’s suffrage are examples of this.

Nothing better illustrates the power of politics to determine civil liberty than the right of free speech. The First Amendment unequivocally states that “Congress shall make no law abridging the freedom of speech, or of the press.” No law means no law, right? Well, no, the whole history of the First Amendment has been one long process of carving out disfavored speech unworthy of protection at a particular moment. Obscenity and hate speech are examples. Politics drives this process.

At the outbreak of World War I, it was a federal crime to say anything that had the natural tendency to cause insubordination or disloyalty in our military forces. Under that law, the socialist Eugene Debs went to prison for praising others who had encouraged refusal to register for the draft. Fast forward to 1968, when the sons and daughters of the middle-class were in the streets protesting the Viet Nam war. Then the Supreme Court ruled that even expressly counseling draft resistance was protected speech. The connection between the political moment and the outcome of these cases is unmistakable.

Another useful football metaphor is “the red zone.” That’s when one team has the ball inside the 20-yard line of the other team. Big things are likely to happen when a team is in the red zone, but whether this will be good or bad depends on which team you’re on. I can’t help feeling that Trump is in the red zone when it comes to immigration. He has promised to deport millions of undocumented immigrants and thinks he has the mandate to do so. We’ll see if he does.

It will be a shock to many in the new Trump administration that non-citizens – even unlawful immigrants – have Constitutional rights. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

Despite some small movement in the line of scrimmage, the Supreme Court has usually ruled that aliens are entitled to a hearing before being deported at which they must receive an explanation of the reasons proposed for their removal, have the assistance of counsel, introduce evidence and cross-examine witnesses, and appeal an unfavorable ruling. If we are a nation of laws, these deportation hearings cannot be sham proceedings where nothing matters but the government’s desire to eject the alien.

Trump suggests that he will declare a national immigration emergency — a truly fictional state of affairs — but that kind of declaration is necessary for him to use military resources for the detention and removal processing of aliens. He may use other fictional reasons to override the due process rights of detained aliens, believing that the political moment strengthens his hand.

I think the new administration will run into significant trouble in the courts if it tries to bulldoze civil liberty using overheated rhetoric and a false narrative. One or two examples of criminal aliens don’t make the case that we have been invaded. And I believe the American people will not lend political support to peremptory or cruel treatment of immigrants. We will throw a flag for unnecessary roughness.

 

 

 

 

 

 

 

 

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Trump Threatens Birthright Citizenship

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Donald Trump is back. And this time he will have a compliant Congress and a whole roster of willing Cabinet ministers. The first thing Trump promises to do — after upending international trade with tariffs — is to deport millions of immigrants. If this did not promise to be both tragic and harmful to the economy, I would feel like making a big bowl of popcorn, pulling up a chair and watching the whole debacle.

There is no question that we need to get control of our borders and reform our immigration system. If we purport to be a country of laws, then our immigration laws need to be enforceable. While I don’t subscribe to Trump’s racist and otherwise offensive reasons for deporting people, orderly immigration is an important goal. But equally so are the need to buttress our dwindling working age population and our national responsibility to behave with grace and compassion.

Listening to interviews of people who cross our borders illegally at great peril to themselves, one is struck by the ordinariness of their motivation. They just want to live more prosperous, secure lives. I’ll wager that any of our ancestors who came here voluntarily had the same motivation.

A part of the anti-immigration effort Trump promises is to eliminate birthright citizenship. This is the legal principle that if a child is born in the United States, she is a citizen of this country regardless of the citizenship or immigration status of her parents. More than thirty countries, including Canada and Mexico, recognize birthright citizenship. Others in Western Europe do not. They require at least one parent of the child to be a citizen.

Trump says birthright citizenship is a magnet for illegal immigration. He has threatened to use an executive order to eliminate it once he assumes office. There is one problem. Birthright citizenship is not a government policy that can be changed with an executive order, or even a law Congress can repeal or modify. The Constitution itself establishes this type of citizenship.

After the Civil War, the United States ratified several constitutional amendments designed to clarify the status of formerly enslaved people. Among these was the Fourteenth Amendment, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is clear enough. The only possible ambiguity relates to the second clause regarding being subject to the jurisdiction of the United States.

Far right immigration opponents like John Eastman have urged Trump to declare by executive order that children born to illegal immigrants are not subject to the complete jurisdiction of the United States because they are not lawfully here and still theoretically owe allegiance to a foreign sovereign. Recall that Eastman, the criminally indicted and disbarred lawyer, was the one who came up with the theory that Mike Pence could simply refuse to certify the results of the 2020 election.

Of course, no established precedent or once-secure right seems safe with the current Supreme Court. But in the case of United States v. Wong Kim Ark, decided in 1898, the Court established that the Fourteenth Amendment creates birthright citizenship even for the children of non-citizen residents. The case arose while federal Chinese exclusion legislation was in force. The government argued that Wong Kim Ark, although born in San Francisco, was the child of two Chinese non-citizen parents who were subjects of the Chinese emperor making him also a subject of the emperor. He was thus not subject to the jurisdiction of the United States, or so the argument went.

But the Supreme Court wasn’t buying this argument. It ruled, with two exceptions not relevant to today’s immigration debate, that anyone born within the territorial boundaries of the United States and residing here was “subject to the jurisdiction of the United States.” The jurisdiction of a country within its territorial boundaries is complete. So our “jurisdiction” applies to children born to illegal aliens — they are required to pay our taxes and are subject to criminal penalty for failure to comply with our laws like the rest of us.

It is hard to imagine West Virginians with serious concern about the practical effect of immigration on their lives, lawful or unlawful. In 2023, there were 32,309 foreign-born people in West Virginia, which is about 1.8% of the state’s population. This is lower than the national average of 14.3%. As a recent article in The Wall Street Journal put it, “there is little evidence that many recent immigrants – either those who entered legally or those who didn’t – have any inclination to go to West Virginia, the only state with fewer residents than it had in 1940.”

The same article pointed out that West Virginia has one of the two lowest labor-force participation rates in the country, while having the second highest rate of job openings and the fourth-highest rate of vacant housing. In other states eldercare is provided disproportionately by immigrants. And the National Association of Home Builders reports that while our native-born workers remain reluctant to join the industry, one in three craftsmen in the construction trades come from outside the U.S. Don’t we need more workers to care for our elderly and build our homes?

Other states with workforce problems like West Virginia’s and an aging population are trying to recruit immigrants. Maine’s government has a dedicated office to welcome and support immigrants. Utah has extended in-state college tuition to refugees, asylum seekers and other migrant groups.

But reason and good public policy don’t seem to matter as much these days as the appeal to emotion. The Trump juggernaut is set to roll. It’s just that when it comes to West Virginia, don’t count on good things happening from the President-elect’s attack on immigration and birthright citizenship.

Thank Goodness for Jennifer Krouse

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Thank goodness for Jennifer Krouse. While we thought we were only electing her to the Jefferson County Commission, she has grown into so much more. She has become the protector of our children at this critical time when we have so miserably failed in our own responsibilities. We must now recognize her with a new title – Leader of the Jefferson County Morality Squad.

Of course, I mainly write in praise of Leader Krouse for her role in the enactment by the County Commission of an ordinance prohibiting a parent (or anyone else) from taking a child to an “adult live performance,” which everyone knows means drag shows. Drag shows are where men dress up like women and make jokes about it.

I remember reading some Shakespeare plays as an assignment in high school. There were men dressing up like women and women dressing up like men. Oh, the inhumanity! This just shows what we get when we allow artists to run amok.

A friend showed me a letter she had written to the County Commission complaining that there had been no public hearing before the ordinance was enacted. She pointed out that Commissioner Stolipher advocated for holding a public hearing but was overruled.

The Leader responded to my friend’s letter by saying that “Only someone with an irredeemably damaged moral compass would be against protecting children from such material. Given that, there was no need to open this up to an extraordinary level of debate.”

Now that’s what I call enlightened leadership!

I looked up the ordinance and it uses an entire paragraph to define “adult live performance.” The definition was confusing and maybe that’s the point! If parents are unsure what it means, they won’t take the chance of being fined. They won’t dare take a 17-year-old child to entertainment where anything about sex could possibly be mentioned. That’s what we want, right?

I did understand that you can’t take kids to any show that is obscene and lacks serious literary and artistic value – and everyone knows what that means. Don’t they?

I must confess that I once went to a drag show in Palm Springs with some friends. The queens were flamboyant, but they didn’t take themselves seriously. They laughed and made fun of the audience. The whole thing was, well . . . very funny.

I know that this is totally disgusting and that I should be ashamed of myself. Because we know that there is only one way to think about gender and sexuality and you are showing us that way. We were meant to be very strict about these things, and our children should be stopped from thinking that they are humorous in any way.

So, Leader Krouse, the parents of Jefferson County will be forever grateful to you and the other members of the Morality Squad for passing an ordinance that fines us if we expose our children to moral corruption. We have so needed your firm hand on our shoulder. You have helped us identify that corruption even though, in our weakness, we could not see it on our own.

And blowing off a public hearing to discuss the ordinance spared us from unnecessary discussion and irrelevant points of view. Who knows what could have come from that?

But whatever else you and the Squad do, please protect our children from Shakespeare!

Trump Fans Want to Talk About Anything But This — He’s Guilty

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It  started immediately after Donald Trump’s indictment. First there was the “whataboutism” and false equivalencies. What about Hillary’s emails? What about the classified documents Joe Biden had? Then the claim that the Justice Department has been weaponized to prosecute only Republicans. Then the claim that the communist, Democrat deep state is determined to take down the leading candidate to oppose Joe Biden in 2024.

This is all deflection. Just like Trump himself, his supporters are grasping at shiny, manufactured grievances but don’t want to talk about the big issue — he is guilty of the serious crimes charged in the indictment.

Whataboutism is the practice of responding to an argument, not with a counterargument, but with an attack that requires the opponent to go on the defensive about another issue. This avoidance maneuver happens often in political debate driven by partisan bias. Sometimes, and our present situation is one of those times, whataboutism is calculated wholly to avoid acknowledging an opponent’s valid point.

We shouldn’t reward whataboutism by taking it seriously. But, okay, what about Hillary’s emails and Biden’s documents? That’s where false equivalency comes in. The gist of Trump’s indictment is that he intentionally retained classified documents, repeatedly refusing to return them or even acknowledge he had them. Then he covered up and lied about having done so. Neither Clinton nor Biden was ever accused of that kind of conduct.

In fact, both Clinton and Biden fully cooperated when asked to do so. Biden actually self-disclosed that he had some classified documents from his time as Vice President. Nevertheless, Biden’s Attorney General Merrick Garland has appointed a special counsel to investigate. The conclusion of the Clinton investigation was that she had been careless but had no criminal intent. So no crime and no indictment. The investigation into Biden’s handling of classified documents has not reached a conclusion.

And here is another key point — Trump has not been criminally charged for taking to Mar-A-Lago any of the classified documents he returned when requested to do so, even though he had no right to possess them. If he had simply given all the documents back he wouldn’t be in this fix.

A person who claims that the Justice Department has been “weaponized” by the Democrats to indict Trump simply does not understand the special counsel mechanism. Or perhaps doesn’t want to understand. A special counsel like Jack Smith operates without political interference.

Special counsel are appointed by both parties. In fact, Trump’s Attorney General William Barr appointed John Durham as special counsel to investigate intelligence gathering and law enforcement activities directed at the 2016 election. The Biden Administration did not interfere with Durham’s investigation after Biden took office. Likewise, the Biden Administration has not influenced Jack Smith’s charging decisions.

The weaponization charge boils down to the fact that Donald Trump has been indicted, as if he is some sacred cow. The allegation is really driven by the result of Smith’s investigation, not the misuse of the process. But after reading the indictment, it is hard to imagine any other result.

The one serious argument made against indicting Trump is that in an evenly divided and polarized country a sitting President should not be seen as prosecuting his predecessor and current rival. The claim is that indicting Trump is political overreach by the Biden Administration of the sort common in third world countries. I am not persuaded.

In the first place, the argument loses steam in light of the independence of the special counsel. Jack Smith is a career prosecutor with an international reputation, not a political tool. Yes, there will be a cost to taking action against Trump — our exemplary system of justice will lose legitimacy among enraged Trump supporters. But where issues of grave national importance are involved there is also a cost in not acting. We would be more like a third world country if we failed to hold Trump accountable as any normal person would be. In the end, if he pays a price for his criminal behavior it will be a triumph for democracy and the rule of law, not a stain.

And by the way, why does the fact that Trump is the leading candidate for the Republican nomination matter? He has been the leading  candidate for months, even announcing early so he could be in the race when the expected indictment came down. Evidently, he thought this would protect him, but he has learned that being a candidate doesn’t give him a pass for crimes committed.

As far as the Democrats worrying about him as a candidate, nothing could be further from the truth. Biden’s advisors are crossing their fingers in hopes that Trump will be Biden’s opponent in 2024. As the Wall Street Journal aptly put it, if Republicans nominate Trump again, they won’t “own the libs,” the libs will own them.

Should the U.S. Lease St. Helena Island?

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Recent legal events have led me to recall St. Helena, one of the most remote places in the world. St. Helena is a small volcanic island in the Atlantic, about 1,200 miles off the coast of Africa and 4,000 miles from the coast of Brazil. The island was, of course, the final place of penal exile for Napoleon Bonaparte, the self-crowned Emperor of France.  St. Helena is now a British Overseas Territory, and I’m sure the Brits would welcome a new revenue stream from an old business — a small but very special penal colony.

St. Helena wasn’t the first place the world sought to stash Napoleon. In 1814 he was exiled to Elba, an island in the Mediterranean. Elba had a population of 12,000 and Napoleon was allowed the somewhat humiliating title of Emperor of Elba. Arriving at Elba he immediately began plotting his escape, which he accomplished in 1815 by slipping past his guards and eluding British ships.

Once back in France Napoleon began drawing huge crowds. French police forces were sent to arrest him, but upon arriving in his presence, they kneeled before him. Does this remind you at all of the fealty shown to a certain political cult leader in America today?

It wasn’t until after his defeat at Waterloo in 1815 that Napoleon was exiled to St. Helena.undefined That island was chosen because it was believed that escape was virtually impossible since the British Royal Navy controlled the Atlantic. Still, the British put Napoleon under armed guard, stripped him of most of his companions and placed him a lonely, windswept house named Longwood.

While at Longwood House, Napoleon constantly complained about the damp and windy structure, alleging that his captors were trying to kill him by means of the rather primitive conditions. Finally the British agreed to improve things and built him a new residence, but he died from complications from an ulcer in 1828 before it was completed.

Penal exile is not an option under the federal criminal statutes of the United States, but it is an intriguing idea for a President who fomented an insurrection and coup attempt. We may simply have to be satisfied with the thought that he could make new friends at a prison within the country.