Vigorous debate among citizens is central to a functioning republic. The meaning of the 14th Amendment to the Constitution should be the subject of just such a debate.
The 14th has been thought to grant citizenship to anyone born on US soil except for the children of diplomats. This has been called “birthright citizenship.” But was this what the authors intended?
The 14th Amendment is one of three constitutional amendments from the Reconstruction Era which followed our Civil War, a conflict fought to preserve the Union and end slavery. Those Confederate states that seceded from the Union were defeated hostile powers under military occupation.
Taken together the 13th, 14th and 15th are often referred to as the Reconstruction Amendments. The 13th abolished slavery. The 14th was meant to insure the rights of newly freed slaves (freedmen), including their offspring. The 15th granted the freedmen the right to vote.
The 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” It passed Congress in 1866 and was finally ratified by all the states in 1868.
Supporters of “birthright citizenship” focus only on the first part of the 14th “All persons born or naturalized in the United States…” and they ignore the second part, “and subject to the jurisdiction thereof..” Legal scholars argue over the meaning of the various clauses and which ones are legally controlling. Supporters of “birthright citizenship” ignore the era in which it was created and what its authors said in the debate leading up the 14th ratification.
The 14th Amendment was written to protect the rights of the freedmen. During that time many thought that blacks were not persons entitled to rights. Roger Taney, Supreme Court Chief Justice from 1836 to 1864 had said, “They (blacks) have no rights which the white man was bound to respect.” The Confederacy may have been conquered and occupied, but they were and would remain defiant. A mere law passed by Congress and signed by the President could be reversed by a future Congress. Therefore a Constitutional Amendment was required to guarantee the freedman’s rights. So concerned were the 14th Amendment’s authors that they were prepared to deny Congressional representation to Confederate states that failed to obey it.
Senator John Howard (R) of Michigan, one of the amendment’s authors, stated, “(The Amendment) will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers…”
The 14th Amendment couldn’t possibly apply to illegal aliens. At the time of its ratification the concept of illegal aliens did not exist. How could a category of people who did not exist at the time fall under its protection? The 14th specifically mentions states: “…no state..shall abridge the privileges and immunities of citizens of the United States.” The authors referenced the states to protect the freedmen in those states defeated by Union forces and, at the time, under Reconstruction.
Why is this important now? There are between 12 and 22 million illegal aliens now in the US. Any woman here illegally who has a child gives birth to a new US citizen, thereby anchoring (hence the term anchor baby) that mother and likely her immediate family here in the U.S.
Our immigration policy has been a failure punctuated by inaction, moral preening and meaningless talking points. We the People have had nothing to do with the immigration mess made by our political class. They have turned a blind eye to people illegally crossing our border and overstaying their visas. Illegal immigration is not a victimless crime—we are all victims. Instead of enforcing existing law the ruling class passed the absurd “Diversity Visa Lottery,” thereby reducing what should be a privilege to a garish game of chance. It is long past time our political leaders listened to us. Citizenship in the freest and most prosperous country on earth is a precious gift and should not be granted because of breaking our laws or cynically skirting them. We citizens should decide who gets to join us in the privilege of calling ourselves Americans. Let the debate begin.
Michael A. Morrongiello, Ph. D.