June 1, 2025
By Stephen Stofka
This is part of a series on persistent problems. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.
Abel said, “What caught my attention this week was an article about some woman from Hong Kong being arrested and jailed prior to deportation (Source).”
Cain frowned. “Small Missouri town, wasn’t it?”
Abel nodded. “I forget the name of the town, but it voted heavily for Trump. Like 80%. This woman had lived in the town for twenty years, had a few kids. She worked as a waitress in the local restaurant and was well-liked by the folks in town. The arrest caught the town off guard. One person said they thought Trump was going to go after gang members and criminals, not mothers.”
Cain shrugged. “If I remember right, she had been in some fake marriage like twenty years ago to get a green card.”
Abel replied, “Yeah. She wasn’t convicted or anything. Back in the 1970s, I knew someone who got paid $10,000 to marry a Hungarian woman. That was a lot of money in those days. Hungary was behind the Iron Curtain, so there were a lot of people anxious to get out.”
Cain asked, “What did they do after they got married?”
Abel replied, “Went their separate ways, although they both had the same address. After a few years, they divorced. I think that was paid for, as well.”
Cain said, “Back to that Hong Kong woman. Almost half of the illegal immigrants in this country came in on visas and simply didn’t leave (Source). DHS reported record estimates of overstays in 2022 under the Biden Administration (Source).”
Abel argued, “Yeah, but a lot of those were from Venezuela. It’s basically a failed state. The UN estimated almost 8 million have left the country since 2014 (Source). That’s more than 25% of the 29 million people in the 2010 census.”
Cain frowned. “And the majority are coming here, it seems.”
Abel shook his head. “No, about 85% have gone to South and Central American countries. It’s a strain on the entire hemisphere. Syria is another country with a refugee crisis, but that was the result of a civil war. Almost half the population had to flee because of Assad’s war against his own people (Source). That doesn’t include all the internally displaced people who had to flee their homes and villages. In Venezuela, Maduro has destroyed his country’s economy. If people can’t eat, they got to leave.”
Cain sighed. “If they can leave. Look at Gaza.”
Abel nodded. “The largest prison in the world. A prison with no food. If we start talking about Gaza, my food will get cold.”
Cain said, “A country has to have rules and procedures for who can come in and how long they can stay. Who is a citizen? Who is not?”
Abel argued, “We didn’t have any rules for 80 years. Not until after the Civil War.”
Cain shook his head. “No way. The 1790 Naturalization Act limited citizenship to free white persons only. The Constitution hadn’t even been ratified yet. It’s the first time that the phrase ‘under the jurisdiction of’ appeared. It also included birthright citizenship (Source).”
Abel frowned. “No, that was the 14th Amendment.”
Cain smiled. “No, not for kids born here. Birthright citizenship for children born overseas if their parents were U.S. citizens.”
Abel was surprised. “So certain populations could immigrate here and work here but couldn’t become citizens.”
Cain nodded. “No Muslims, no Chinese. In a few decades, Congress added residency requirements for naturalization. People had to show proof when they entered the country. It was never an open door policy. All that ‘give me your tired, your poor’ stuff.”
Abel replied, “An open door for workers, but a lot of workers couldn’t be citizens.”
Cain raised his eyebrows. “Right. So, during the drafting of the 14th Amendment after the Civil War, the Senators argued over the wording of Section 1. Would the final wording include the children of Chinese immigrants (Source)? They agreed that it would.”
Abel asked, “Why was there a Supreme Court case about it then?”
Cain grunted softly. “This was in 1898, after Congress had passed the Chinese Exclusion Act barring citizenship specifically for all Chinese.”
Abel interrupted, “For like a hundred years, the British and Americans treated China really badly.”
Cain nodded. “And they haven’t forgotten it, either. The case was about Wong Kim Ark. Ark, like Noah’s ark. His parents were legally in the country when he was born but then they returned to China. So, when he was 21, he went back to China to visit them. When he returned to the U.S., authorities claimed that he couldn’t be a citizen and wouldn’t let him back in (Source). The court ruled that the birthright clause in the 14th Amendment gave Ark citizenship.”
Abel said, “And that’s where it’s stood for more than hundred years. Then Trump issued his executive order a few months ago.”
Cain tilted his head. “Not quite. I’ve heard about the ‘jurisdiction’ argument for some time. In 2010, Peter Schuck, a Yale professor, wrote an op-ed in the New York Times explaining some of the arguments against an outright grant of citizenship to anyone born in the U.S. (Source). He mentioned anchor babies. That’s like where a woman crosses the border …”
Abel interrupted, “or overstays a tourist visa like some Chinese women have done.”
Cain nodded. “That too. But anyhow, has a baby shortly after coming into the country. Did the framers of the 14th Amendment mean to include those children? Given the history of immigration laws in this country during the 19th century, that seems unlikely to a lot of people.”
Abel argued, “Even though the parents were here illegally, they were still subject to the jurisdiction of the U.S.”
Cain sighed. “The Ark precedent never settled the question of the parents’ status because Ark’s parents did have a right to live and work in the U.S. at the time their son was born. But what if your parents do not have permission to be here? What does it mean to be ‘subject to the jurisdiction’ of some country? Sure, some sheriff can arrest you and hold you, but the local district has no legal jurisdiction over you the way they would with an American citizen.”
Abel asked, “But we don’t penalize children for the sins or transgressions of their parents. If my parents owe money to some creditor and they die, that debt does not pass on to me.”
Cain agreed. “Schuck mentioned that. He was discussing the arguments on both sides.”
Abel nodded. “Right. Why should the legal status of my parents matter? If I am born in the U.S., badda-bing, I’m a U.S. citizen.”
Cain shrugged. “Depends on how the court reads the phrase “and subject to the jurisdiction thereof’ in Section 1.”
Abel shook his head. “What is a hospital supposed to do when a kid is born? Start checking the status of their parents? It’s a hospital, not an immigration court or the DHS.”
Cain nodded. “Yeah, there’s the practical side. Shuck suggested a compromise where a kid would spend so many years in school, perhaps, before they could become a citizen. Establish a connection to the U.S. Some European countries do that.”
Abel laid his fork down. “What about the status of all the kids that have been born in the past few decades. Are they suddenly going to become stateless?”
Cain shook his head. “Don’t ask me. The conservative justices will be looking at history and tradition at the time of the 14th Amendment.”
Abel’s tone was frustrated. “They’ve overturned Roe. They’ve nullified campaign finance laws in Citizens United. Money is speech! Who knew?”
Cain leaned forward and said in a hushed voice, “I can hear you.”
Abel settled back in his seat. “Right, sorry. Anyway, the court adopted a whole new reading of the First Amendment in that case. Then they reinterpreted the Second Amendment in the Heller and Bruen decisions. Last year, they gave the President the immunity of a king in their reading of Article 2 of the Constitution. What’s next? Why don’t they just rewrite the entire Constitution?”
Cain smiled. “The Democrats have no one to blame but themselves. They were the ones who did away with the Senate filibuster rule for judges in 2013. Confirmation required only a majority vote, not the sixty votes required for a filibuster.”
Abel argued, “That was because the Republicans were blocking the appointment of many lower court judges as a matter of tactics, not ideology. Harry Reid, the Majority Leader, had no realistic choice.”
Cain replied, “That’s a matter of perception. The Senate is a tit-for-tat institution. When Republicans got the majority, they extended that exclusion from the filibuster to confirmations of Supreme Court justices.”
Abel looked glum. “Then Trump appointed three extremists to the bench during his first administration.”
Cain asked, “Extremists? Anyway, whose fault was that? People had advised Justice Ginsburg to step down while Obama was in office. She was in her eighties, and had multiple health problems, including cancer (Source). Like a lot of politicians in Washington, she tripped on her big ego. I admire Justice Breyer for stepping down a few years ago while he was still in good health.”
Abel replied, “I read his book Reading the Constitution. He claims that a pragmatic interpretation of the law is better than an originalist or textual reading. He wrote, wait a second, I highlighted it. A jurist should ‘appeal more directly to values than a rules-based approach would advise’ (page 140).”
Cain frowned. “If there are several values, how much weight to give each individual value? Maybe freedom in one decision, civic order in another.”
Abel asked, “So you would argue that Scalia’s approach was more consistent?”
Cain nodded. “Yeah, I think a jurist has to ask themselves ‘what was the purpose of this law when it was written?’”
Abel said, “Breyer mentions that Scalia’s chief concern was the original intent of the law” (page 139). The framers of the Constitution argued over every clause. The final language tried to strike a balance between two principles, or two values. I think that’s what Justice Breyer was getting at.”
Cain asked, “So Breyer would have been looking for two values that needed to be balanced?”
Abel shrugged. “He didn’t say that. It’s more my thought based on what Breyer wrote and James Madison’s account of what the framers argued about during the Constitutional Convention (Source). I was trying to come up with a simple rule of constitutional interpretation. I like the balancing of values test.”
Cain nodded. “I like that method because it reminds me of the balance between supply and demand. My rule about limiting exceptions is when making the law, not interpreting the law. I think I agree with Scalia that justices should try to figure out what was the purpose of the law, the original intent, then come up with a simple rule that can be applied in the circumstances of the case before the court.”
Abel frowned. “You said the rule in the Heller decision wasn’t well constructed. Scalia wrote that decision.”
Cain shrugged. “Just because Scalia wrote it doesn’t mean it meets my test for a good rule.”
Abel argued, “Very often, lawmakers do not want to state the intent of a law. What they do is construct a process, a set of procedural rules to achieve a stated purpose. Take, for example, the 1924 Immigration Act. Republicans wanted to maintain a homogenous population of English and those from northern European countries. They already had a quota system in place, so that it allowed more immigration from those favored countries and restricted those from less desirable countries in southern Europe and other parts of the world.”
Cain shook his head. “Maybe the purpose was not stated, particularly in earlier laws. The justices should be able discern the purpose from auxiliary sources. There would have hearings, Congressional notes, commentary from the press that linked to Congressional sources. That kind of stuff.”
Abel nodded. “I understand. My point is that the purpose of a law can be subject to interpretation. Scalia sold the idea of original intent as a more grounded approach, but it can be a complex interpretation that is mostly grounded by the court’s own biases. That’s what we’re seeing the past decade or so. You didn’t like the reasoning in Heller.”
Cain replied. “No, I didn’t. I liked the conclusion they reached, or at least part of it. The contradictions in the reasoning meant that more cases would come to the court because judges in the lower courts would not be able to apply the precedent consistently.”
Abel interrupted, “Yeah. You said that was the sign of a badly constructed rule or precedent.”
Cain nodded. “Right. Scalia wrote the Heller decision (Source) and he had an ego at least as big as Ginsburg’s. In the Heller decision, Scalia took on the role of English professor, analyzing the grammar construction in the Second Amendment.”
Abel asked, “Did Scalia study English before going to law school?”
Cain shrugged. “I don’t know whether he had any formal training in grammatical construction during the 18th and 19th century.”
Abel replied, “It does seem like a constitutional scholar would have to become familiar with that kind of construction.”
Cain nodded. “Yeah, but a judge would read only a narrow slice of literature from a time period. It hardly makes them an English scholar of that period.”
Abel said, “So back to the Second Amendment.”
Cain continued, “Scalia asserted that the prefatory clause in the Second Amendment, the one about the Militia, does not limit the operative clause stating that individuals have the right to own and bear arms.”
Abel frowned. “Well, a prefatory clause can explain the reasoning for an operative clause. We see that construction in Madison’s notes during the Constitutional Convention (Source). So there’s the original intent of the Second Amendment. End of story. If Scalia was basically going to ignore the prefatory clause about the Militia, then anyone could own a firearm. Convicted felons, crazy people.”
Cain nodded. “In 1791 when the Second Amendment was ratified, states did not ban weapons for those kind of people, although a few towns had some rules against it. Scalia claimed to be a champion of rules (Source), but the lack of rules at that time gave him a problem. If his grammatical analysis did not limit the right to bear arms, states could not legally bar people from owning a gun.”
Abel nodded. “A practical problem. Breyer wrote that originalist interpretations like Scalia’s didn’t look to the consequences of an interpretation (page 128), but this time, you’re saying that Scalia did have to look at that.”
Cain replied, “Sure. The 2008 Heller decision was a 5-4 vote. Remember that Scalia is most noted for his dissents, not his majority opinions (Source). A dissenting opinion can lay out bold principles because it doesn’t need to reach a consensus. This time, Scalia couldn’t afford to lose a vote, so he had to step back from a rigid application of his own rules.”
Abel asked, “You would not have done so?”
Cain replied, “First of all, I would have used some sources on English grammar to validate my grammatical analysis. Did a prefatory clause limit the operative clause in general use at that time? Not just in legal texts, but in newspapers, novels, et cetera. You need more than legal citations. ”
Abel asked, “So how did Scalia resolve his practical problem?”
Cain squinted for a moment. “He asserted a natural limit to all rights based on common law. Blackstone’s commentary on English law notes that no right is absolute (Source). The right of one person can interfere with the right of another person, with the body politic (Source).”
Abel nodded. “Competing interests, in other words. That balancing test I mentioned earlier. Balancing values and interests. So why can’t the state limit a person’s right to carry a gun in the interest of keeping civil order?”
Cain replied, “Yep, that’s a problem and Scalia doesn’t really clarify that competing interest thing.”
Abel asked, “You would have clarified it?”
Cain nodded. “Sure. It doesn’t take a genius to know that the issue of competing interests will come to the court again as the lower courts try to resolve cases involving these interests. And they did.”
Abel said, “The 2022 Bruen decision said that local jurisdictions could not require permits for self-defense outside the home. They had to use historical tradition to support their case.”
Cain replied, “Correct. The court gave deference to the right of self-defense over a competing state or local government interest.”
Abel argued, “But you said that there were few historical cases when the Second Amendment was written. So states would have to use 19th century traditions. What makes the 19th century so special?”
Cain shrugged. “Like I said. The reasoning is a mess. If there is little historical tradition at the time of the amendment’s ratification, that should be the historic tradition.”
Abel smirked. “So, in your world, we would all go around with six-shooters in holsters just like in the Westerns.”
Cain laughed. “Gimme a break. My reasoning wouldn’t ignore consequences the way Scalia does.”
Abel said, “So you do agree with Breyer. You’re a liberal at heart.”
Cain chuckled. “The price system does not ignore consequences. It is a balancing of interests between suppliers and consumers.”
Abel interrupted, “Consumers who are factors in the supply of what they consume.”
Cain nodded. “As workers. Ok, good point. Anyway, there is no price system in the law.”
Abel asked, “Could you invent one?”
Cain looked puzzled. “Could I? Of course not. But that raises a good question. Why didn’t a price system evolve in a democratic system?”
Abel replied, “That’s easy. Everyone gets one vote.”
Cain smiled. “In a competitive market, some people have more of a surplus than others. Resources and wealth are not distributed evenly. Demand is not distributed evenly. It’s that imbalance that spawns the price system. There’s too much balance in a democratic system for a price system to work. Each party tries to tear away at that balance, to make it unstable so that they can exert their will.”
Abel frowned. “So, what? Sell votes?”
Cam shook his head. “No, votes are like money. A medium of exchange for the transfer of power, for authority, for legitimacy.”
Abel asked, “Allocate votes to each voter based on how much power or authority is at stake?”
Cain smiled and slid out of the booth. “It’s certainly something to think about. I will see you next week.”
Abel laughed. “Next week, another episode of Pinky and the Brain, plotting to take over the world.”
Cain laughed. “Or at least try to understand it. My treat this week. See you then.”
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Innocent Investor 