BUT DID THE 14TH AMENDMENT EVER REALLY GRANT IT?
by Sharon Rondeau
(Jun. 15, 2010) — The sponsor of Arizona’s new immigration law, State Senator Russell Pearce, recently stated that he will “work to see Arizona’s controversial new immigration law mirrored in a third of the country.” Rasmussen reports that 60% of Americans favor the new law which is scheduled to take effect on July 29, 2010, despite numerous lawsuits against it.
He is also now planning to introduce legislation which would revoke automatic citizenship for children of illegals born within the borders of the United States.
Of the new proposal, Pearce stated, ““It is difficult to imagine a more self defeating legal system than one that makes unauthorized entry into the U.S. a criminal offense, and simultaneously provides perhaps the greatest possible inducement to illegal entry.”
Pearce also believes that children of illegal immigrants attending school in the U.S. should have to pay tuition to cover the costs, thereby relieving American taxpayers of the responsibility.
The Fourteenth Amendment followed the passage of the Civil Rights Act of 1866, which reads, in part:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
The section of the Fourteenth Amendment to the U.S. Constitution which deals with the issue of citizenship reads:
Section. 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
An analysis of the citizenship issue addressed by the Fourteenth Amendment states that “Congress’ intent in including the qualifying phrase ”and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, as well as children of members of Indian tribes subject to tribal laws. The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas.”
The Fourteenth Amendment also dealt with naturalized citizens who had returned to their home countries and voted in an election there, determining that such a person lost his U.S. citizenship upon so doing.
A history of the Fourteenth Amendment and the reasons for its drafting and ratification can be found here. It was known as the “Reconstruction Amendment” and was written to give citizenship to former slaves and their children who had been born in the United States while in captivity. It does not mention anyone born to parents who had entered the U.S. illegally, as at the time there was “no formal immigration policy.”
Rep. John Bingham of Ohio was the primary author of the Fourteenth Amendment, which was intended to remedy “injustice and oppression.” Before its ratification, Bingham addressed the House of Representatives:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…. .
Bingham’s “likely intention” was also to have the first eight amendments in the Bill of Rights (which contains ten amendments to the Constitution) apply to all of the states. Some of the debate which took place prior to the Fourteenth Amendment’s ratification is as follows:
On Jan 12., 1866, Rep. John Bingham of Ohio began the drafting of the Fourteenth by a proposed amendment to the Joint Senate-House Committee of 15:
The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property.
Rep. Thaddeus Stevens of Pennsylvania proposed a similar guarantee:
All laws, state or national, shall operate impartially and equally on all persons without regard to race or color.
The phrase “subject to the jurisdiction thereof” appears to exclude people born in the United States but whose parents owed allegiance to a foreign country. The Slaughter-House case decision stated that “The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions.”
In 1856, ten years before debate began on the Fourteenth Amendment, the Dred Scott Decision had stated that “4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” The Fourteenth Amendment was intended to bestow all of the rights granted by the Bill of Rights to former slaves, regardless of their state of residence.
In the Supreme Court decision, Chief Justice Roger Taney “had conceded to members of the state communities ‘all the personal rights, privileges, and immunities guarantied to citizens of this ‘new Government.’…However, Taney had disregarded the plain meaning of the term ‘the people’ by excluding blacks.“
Arizona’s Pearce is not the only legislator discussing a redefining of the Fourteenth Amendment. A bill was also introduced in the U.S. House of Representatives “that would modify that amendment to restrict birthright citizenship to children with at least one parent who is a U.S. citizen, or a lawful permanent resident or is on active service in the armed forces. “
Another analysis of the “original intent” of the Fourteenth Amendment states that “Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.”
The 1924 Indian Citizenship Act conferred citizenship to Native Americans who had been born “within the territorial limits of the United States.” The act appears to confirm that Native Americans were considered to have met the requirement of “subject to the jurisdiction thereof.”