November 2018

Townhall.com
NOVEMBER 7, 2018
One Small Step for Members, One Giant Leap for Civility
Bob Barr

This opinion piece went to press before the results of yesterday’s voting were known.  But regardless of who will serve as the country’s next Speaker, one question will remain distressingly front and center:  how we can return a degree of civility and professional discourse to an institution that has drifted far from such a mooring.

We now find ourselves at a point where a veteran Member of the House can — without a word of admonishment from her Party’s leadership — call on people to “get in the faces” of those with whom they disagree, and who vows openly to use the power of a committee chairmanship to wreak vengeance on political enemies. Others call for “kicking” opponents when down.

We have seen confirmation hearings for a nominee to the highest court in the Land descend into shouting matches that would be, in some other setting, utterly comical.

It has become fashionably facile for Democrats and others to lay blame for this toxic environment at the feet of Donald Trump.  The plain-speaking president frequently makes it easy for such a charge to be levied. However, the current condition has been far longer in the making than two years; and congressional leaders, especially those on the Democratic side, have done virtually nothing to stop or even slow the downward spiral.

Rekindling civility in a body grown unaccustomed to it, will be neither easy nor quick.  But there is one step which Party leaders on both sides can take that could at least start that process.  It is a step surprisingly simple; a move actually taken two decades ago by a man – Newt Gingrich – who was demonized by the Left as being uncivil, but who truly understood and advocated for civility in public policy debate.

In early 1997, at the start of the 105th Congress, then-Speaker Gingrich and then-Minority Leader Dick Gephardt scheduled a three-day bipartisan retreat in Hershey, Pennsylvania for all House Members, along with their spouses and children.  My wife and I, in the company of our two teenage sons, traveled to Hershey on Amtrak not really knowing what to expect.

Just two years prior, the House majority had switched from Democrat to Republican for the first time in four decades.  Tempers were still high; emotions remained raw; and both sides eagerly anticipated battles to come.  But the simple decision to transport everyone out of the Washington swamp to a resort in Pennsylvania for a long weekend, was genius, and at least in my opinion an unqualified success; if “success” is defined as creating a tangible degree of good will and understanding where little if any had existed previously.

The retreat forced Members from one Party to be in close proximity to their counterparts on the other side of the aisle, for two solid days with no easy escape; and in settings far different from the structured, adversarial environs in which virtually all House business had been defined to that point.

Democratic and Republican Members ate and talked together, in small groups and large over the course of two days and nights.  Most important, the interactions took place with spouses and children present.  This ensured that Members who might otherwise shout charges and level accusations at an opponent, to instead actually listen to one another and respond civilly.  Members from one Party were able to see their counterparts from the other Party not as one-dimensional enemies to be shouted down and belittled; but as human beings with strengths and weaknesses as they themselves possessed.   The exercise began to actually break down barriers reinforced by the relentless battering that had become standard fare in the Congress.

One of my sons, watching Chuck Schumer dance with his daughter during an evening party while we were in Hershey, turned to me and remarked that, “he is as bad a dancer as you are, Dad.”  In fact, Schumer was not as bad a dancer as I was (and remain), but my son’s observation encapsulated precisely what that weekend retreat accomplished. The exercise pushed us to see each other as husbands, wives, parents, and neighbors.

It worked; for a while.  Unfortunately, leaders from both Parties failed to follow up on its success over the long term.  But for one brief, shining moment, the ice of extreme partisanship melted away and was replaced by civility.

Whoever is elected Speaker come next January, I would strongly urge he or she take that same small step as did Newt Gingrich and Dick Gebhardt in January 1997.  It worked then and will work again.  Lord knows we need it now more than ever.

Birthright Citizenship Is No Constitutional Guarantee

The Daily Caller

11:00 AM 11/03/2018 | OPINION

Bob Barr | Former Congressman (R-GA)

The 14th Amendment to the Constitution has been part of our Constitution for 150 years, but the “birthright citizenship” language it contains has never been directly addressed by the United States Supreme Court; the only time it even partially dealt with the issue was in 1898 (in a case that involved foreign parents of a child born in the U.S. who were lawfully in the country). The Congress, which could legislatively define and limit the amendment’s problematic terms, has never developed the political backbone to do so.

President Trump has stepped into this vacuum declaring that he will, by executive order, clarify and limit what it means for a person born in the United States, to also be “subject to the jurisdiction thereof” as the amendment requires. This point bears repeating: in order for a person to be considered a U.S. citizen by virtue of being born within the borders of our country, they must also be subject to our sovereign power.

The flash point here is clear: does a child born to a mother who is in the United States illegally, gain American citizenship by the sole fact of having been delivered on our side of the border?

To understand and answer this question, it is necessary to consider the historical and legal parameters within which both our Constitution and the 14th Amendment were crafted, considered and interpreted.

As a starting point, it is important to understand that there is absolutely nothing in the legislative history surrounding the adoption of the 14th Amendment that supports the interpretation that it contemplated granting citizenship to children born of mothers unlawfully in our country. In fact, quite the opposite becomes clear if one studies the records of the actual debates accompanying adoption of the proposed amendment by the Congress.

There is, for example, argument by the very drafters of the language establishing that it was not intended to grant citizenship to foreigners. The amendment’s clear and overriding purpose was to ensure that emancipated slaves born in the U.S. would be considered citizens; it had nothing to do with children born of non-citizens while in our country.

Furthermore, standard rules of legislative interpretation mandate that the amendment’s language in this regard must be afforded meaning consistent with relevant history, law, and intent. As noted in the Heritage Foundation’s Guide to the Constitution, much of the law and rules of interpretation employed by the drafters of the amendment drew on British canons of law, including the seminal treatises of law by Blackstone that declared birthright citizenship a feudal concept and therefore inapplicable to and incompatible with our form of government. This clearly supports the argument that in the drafting of the language of the 14th Amendment, births by illegal aliens were not “subject to the jurisdiction” of the country and therefore not entitled to enjoy the privileges of citizenship.
Thus, even though at the time of America’s split with Great Britain in the last quarter of the 18th Century, our then-mother country recognized citizenship by birthright, the principle was not incorporated by language or intent into our constitutional system of governing; and the 14th Amendment made this clear.

Congress to this point has been unwilling to address the problem. It could do so, for example, by passing legislation making clear that the phrase “subject to the jurisdiction” of the United States, means persons lawfully in the U.S. and therefore subject to our nation’s sovereignty rather than the sovereignty of the country in which they are lawful citizens. Or Congress could, by super-majority in both houses (and after ratification by three-quarters of the states), amend or outright repeal the 14th Amendment.

Absent a successful constitutional amendment, any legislation affecting the meaning of the birthright citizenship language certainly would be challenged in court, and likely quickly reach the Supreme Court. An executive order signed by President Trump to do the same thing, would similarly be challenged and present the question to the Court.

Trump may not have unanimous public support for taking action in this regard, but history and the clear meaning of the Constitution’s provisions are on his side. And, at a time when clarity in immigration policy and law are ever more critical, having a president willing to do something to move the ball forward is refreshing.

Bob Barr represented Georgia in the United States House from 1995-2003. He is presently the president and CEO of the Law Enforcement Education Foundation, which supports law enforcement officers.