How Goes the 14th Amendment

Monday, July 9, 2012

By Stanley E. Flink
In 1790, when James Madison was asked to write a Bill of Rights in the form of amendments to the United States Constitution, he expressed some doubt that enumerated rights were necessary. If the Constitution, as already drafted, said nothing about religion or speech or press, why mention them at all? There were, Madison pointed out, no limitations unless specifically cited.
He wrote about his skepticism to his friend, Thomas Jefferson, who was the American Envoy in Paris at the time. Jefferson promptly urged him to get on with the Bill of Rights. He told Madison that enumerated rights would give the people confidence and quiet the critics of the Constitution.
Madison took that advice. He agreed with those who feared big government, but he also feared the tyranny of the majority over the few. Among his proposals, he included, "No State shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases.”
The Senate met in secrecy and determined, for reasons they never explained, that the first ten amendments—the Bill of Rights—were to be a restraint on the federal government only; leaving the State legislatures free to do as they pleased. Even if the Bill of Rights had been given power over State laws in 1791, women, American Indians, and white men who did not own property would still not have been allowed to vote and would not have had the full protection of the "highest law of the land” accorded to bona fide "citizens.” Slaves, needless to say, had no rights at all. The XIII Amendment, ratified on December 6, 1865, finally declared that slavery shall not exist "within the United States, or any place subject to their jurisdiction.”
Three years later, in the summer of 1868, the XIV Amendment directed that, "no state shall make or enforce any law” that denies American citizens the "privileges or immunities” of the United States, including life, liberty or property, without due process, and it promised to every citizen "equal protection of the laws.”
The first sentence of the Fourteenth Amendment, however, has taken on a life of its own: "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.” There is no doubt that this sentence was explicitly written so as to provide citizenship for the children of slaves—many sired by white slave owners. There were, in 1868, no federal immigration laws. Immigrant parents of children born in America could not be declared illegal at that time. What has currently brought so much attention to the Fourteenth Amendment’s opening sentence is the charge that illegal immigrants come to America precisely for the purpose of giving birth to a child who will automatically become an American citizen. It has been claimed that more than 300,000 babies were born to illegal immigrant parents in the United States during 2008. Many of them leave the country, but the children can return as citizens.
Pressure on Congress is growing to amend the Fourteenth Amendment, so as to deny citizenship to infants born in the United States if their parents were illegal immigrants. To make such an amendment requires the support of two-thirds of the House of Representatives, two-thirds of the Senate, and the ratification of three quarters of the State legislatures. This process could take several years—but at least four Republican Senators have currently suggested that it should be considered. The reaction to such an undertaking has been predictably heated. Immigrant groups—particularly the Hispanic population—see it as an attack on their legitimacy. Defenders of the Constitution see it as an unraveling of settled principles and statutes. Others believe the problem can be solved legislatively without creating a constitutional crisis.
Professor Peter Schuck of the Yale Law School, writing on the Op-Ed page of the New York Times, cites the clause, "and subject to the jurisdiction there of” as the basis for excluding birthright citizenship to American-born children of American Indians (who were in 1868 part of then existing "separate tribal nations”), foreign diplomats, and soldiers of foreign countries.Schuck asserts that, in 1868, Congress had "come to view citizenship as a mutual relationship to which both the nation and the individual must consent.” This explains why Congress passed—one day before the citizenship clause in the Fourteenth Amendment was ratified—the Expatriation Act allowing Americans to shed their American or foreign citizenship.
Does this mean that Congress can deny birthright citizenship without a Constitutional Amendment? It is Schuck’s view that Congress can. He argues that children born here as a consequence of an illegal act—such as entering the country without permission—have no claim on citizenship.The argument of those who oppose such a position is that we are all immigrants, or descendents of immigrants, and many of our grandparents or great grandparents arrived in America without permission. They became naturalized citizens over time.
Of the eleven or twelve million immigrants living and working in America now, who are not American citizens, about a third have children born here. These "undocumented” workers may have been here for years, paid taxes, and become members of the communities where they live. If they were to be deported because of alleged illegality, what would become of their citizen children?
Professor Schuck suggests that citizenship be determined by what international law terms a genuine connection to American society. In some European countries, citizenship is possible for families that have been in the country for a long time. England, for example, requires ten years of residence. Congress, in theory, could say that a certain number of years of education in American schools is a requirement. At the age of ten or twelve, such children could apply for citizenship. The children would become citizens "regardless of their parents’ status.”
This concept doesn’t solve all the problems by any means, but it could help move the conversation towards an overarching immigration reform. Whether such ideas take hold and replace the notion of a long struggle to force millions of "undocumented workers” into deportation will be a paramount political debate for years to come.
In 1915, Theodore Roosevelt admonished that, "The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities.”
He may not have envisioned the Fourteenth Amendment, then less than fifty years a part of the Constitution, as a catalyst for squabbling, but the immigrant groups from Mexico and Asia and Africa, who are citizens and function so significantly in the contemporary American economy, may separately or in coalition soon exert their political clout electorally.
The Republican Party will feel that clout because it is seen as threatening the Fourteenth Amendment birthright citizenship. The Tea Party—if there is a coherent organization emerging beneath that banner—may suffer from perceived racism. And the Democrats will have to choose a path among the issues involved that invites immigrant support but does not lose the votes of traditional labor unions, and hard-pressed middle class families who feel vulnerable to the lower-paid immigrant workers in the job market.
In all of this, the press has a crucial role. It is, itself, the beneficiary of the First Amendment—indeed, it is the only private enterprise with a constitutional protection. The First Amendment has slowly been incorporated into the 14th Amendment during the 20th century by a series of Supreme Court decisions culminating in the 1960s. The 14th Amendment appeared to give the Bill of Rights authority over State laws, as Madison had proposed in 1791. But the Supreme Court found reasons for ruling otherwise. It interpreted "privileges or immunities” as qualities of national citizenship, such as the right to travel across State borders, and not the same as those individual liberties cited in the Bill of Rights. Constitutional protection and responsibility as an obligation puts the free press at the center of the political process, more than it has ever been before. In a polarized society, which finds its information fragmented by the Internet, and is subjected to highly partisan cable news programs, talk radio, and the strident, opinionated journalism of the blogosphere, people must work harder to find truth in the fog of propaganda and hidden agendas.
Much of what is given to the public as information by non-profit think tanks and special interest groups is paid for by ideological foundations, unions, and individual billionaires, with limited or no transparency. The power of money in politics is well known, but how it is channeled and by whom, is far less known. Only a dedicated, responsible and independent press can put the light on in dark places for the public interest. What is in the public interest, however, does not always interest the public—particularly when so many people want and look for confirmation of what they already believe.
To persuade reluctant audiences that they must consider facts they do not find congenial, is a task that journalists, empowered by both the First and the Fourteenth Amendments must undertake. There is no other agency to do that work, and it will always require credibility, painstakingly earned over time by competent, accountable reporters, editors and editorialists, in print or on line.
Can the blogosphere adopt such standards? If it cannot and if, at the end of the day, news and information on vital public issues—including national security—is perceived to be so corrupt and inadequate that it becomes a public danger, how long will it be constitutionally protected?
The press has, by its very nature, defined its own place in society. If it does not clearly define and accept its responsibilities and keep its standards strong under the lens of self examination, intramural criticism, and public accountability, news will become just another commercial enterprise, selling itself as entertainment—in print, on television, or on line, with little meaningful substance between them.
©2015 Stanley E. Flink. All Rights Reserved. Posted with permission of the author.