Don’t diddle around with the Constitution
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside….” — 14th Amendment of the Constitution of the United States
Thanks to election year hype on the always hot button issue of immigration, combined with yet another indication of presidential indifference to the nation’s founding document, I have heard and read more about the 14th Amendment in the past month than I have since a very long-ago Constitutional Law class.
And that, unto itself, might be a good thing — in the sense that all knowledge one gleans can only be beneficial — were it not for the most unfortunate fact that the vast majority of what’s being said is not only flat wrong, but remarkably ignorantly so.
The president has apparently divined through unknown mystical means that he can simply change a constitutional amendment — eliminate birthright citizenship — by executive fiat, literally through his signature.
He will likely be surprised to learn that he cannot.
And a lot of other folks will probably be equally surprised to learn that the 14th Amendment, the one at hand, has its roots not in the perceived by some societal scourge of immigration, but rather in another real one — slavery.
Specifically, the 14th Amendment sprang from a desire to right the legal and moral injustice resulting from the Supreme Court’s deeply flawed ruling in its now infamous 1857 Dred Scott decision and to codify the historically sacred concept that all Americans are born equal.
After the Civil War, Congress set out to grant full citizenship to African-Americans who had been denied that by the Dred Scott decision, and for good measure, went further, stating in very clear language that any person, regardless of his or her ethnicity or country of origin, also had the right to citizenship upon the exceeding good fortune of being born on United States’ soil. There’s not a lot of wiggle room in “all persons born or naturalized in the United States…”
And those who seek to find some within the words “and subject to the jurisdiction thereof” are barking up a hollow tree, since that phrase was meant to exclude only the children of foreign ambassadors, warring soldiers and members of Indian tribes, who were, until 1924, legally considered to be citizens of respective sovereign Native American nations.
See? Nothing about birthright citizenship of immigrants, yet. But that doesn’t mean that the right guaranteed by the 14th Amendment does not apply to them—and a few years later, in 1898, the Supreme Court affirmed just that.
In that year, when the country was otherwise occupied by the Spanish-American War, the high court ruled in a case styled United States v. Wong Kim Ark, a child born to Chinese immigrant parents in America, that the amendment absolutely applied to the children of non-citizens, writing: “Citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.”
Bingo. No ambiguity. Just as a learned lawyer friend of mine replied to an idiot trying to argue the neo-Trump view about this on social media the other day, “it says what it says.”
Ah, but that was a long time ago, you say. What those absolutely ancient Founding Fathers and what those stuffy old Supreme Court justices thought back in the 1800’s couldn’t be relevant now.
So, how about 1982?
That’s when yet another case, this one styled Plyler v. Doe, made its way to the SCOTUS and in that one, a much more modern court ruled that even if someone enters the country illegally, they are then within the jurisdiction of the United States and if they subsequently have children, those children are entitled to the 14th Amendment’s protections.
So much for ending birthright citizenship with the atypically vertical strokes of a presidential pen.
But don’t take my word for it. The retiring Speaker of the House of Representatives Paul Ryan, last time I looked a Republican, said pretty plainly, “You cannot end birth citizenship with an executive order.”
And, you know, there’s something else, folks.
Historically, the Constitution has been amended — that is amended through the traditional process of doing so — to expand rights and increase protections, not to reduce them. The one exception to that which comes to mind is the 18th Amendment, which imposed a criminal prohibition on alcohol and was a spectacular and unmitigated failure, which had to be corrected by yet another amendment, undoing it.
So maybe, just maybe, when it comes to the Constitution, we really ought to leave well enough alone.
Ray Mosby is editor and publisher of the Deer Creek Pilot in Rolling Fork.