As we follow the arguments before the Supreme Court regarding the 14th Amendment to the U.S. Constitution, there are some questions that we might ask ourselves.
I am not an attorney, have never studied law, nor am I a constitutional scholar. I am just an interested citizen, and I don’t know how the Supreme Court will eventually rule, nor can I ascertain from the arguments this week, how the Justices currently lean. The purpose of this essay is to raise some issues that seem, at least to me, important to help each of us understand our own positions.
HISTORICAL CONTEXT
As the discussions proceed today about how the framers of the Constitution did not anticipate the ability of illegal aliens to enter this country, it is interesting to think about the time in which that Constitution was written.
There were no restrictions on who could arrive in this country and settle here. Most of the framers were born of immigrants who had traveled by sea to find a new life in America. None of them had entry visas or had been processed for admission to this country. They arrived by ship and began a new life here.
The first Act to administer immigration was not passed until almost a century later. The Immigration Act of 1891 codified excludable classes from immigration. Our current laws began with the passage of the Immigration Act of 1924.
So, as far at the framers understood, the issue of “illegal aliens” did not exist. All were welcome here to help create a new society, governed by a set of laws that were unique to the American Experiment.
REGULATING THE CONSTITUTION
To my liberal friends who read the Amendment as clear and immutable:
I wrote an essay awhile back trying to understand the First Amendment and how its clarity seems audacious to me.
When I raised the issue of that clarity, and how the First Amendment remained intact for 100 years before the Supreme Court began to modify its meaning, some of my readers, particularly the attorneys, pointed out that nothing in the Constitution exists without the need for regulation. The First Amendment has been regulated to prohibit speech that is dangerous in the moment (yelling “FIRE” in a crowded theatre), that promotes violence, etc. The Second Amendment has been regulated to prevent people from carrying automatic weapons, flame throwers, and grenades, or from possessing tanks, howitzers, or fighter planes.
So, now I ask, “Shouldn’t the 14th Amendment be subject to the same regulatory actions?” Is it not then proper for the Supreme Court to look at the wording of that Amendment and decide that it should not apply to certain classes of people? For, if you argued that the First and Second Amendments were not absolute, should you not also argue that the 14th is also not absolute? For example, should the child of a convicted foreign agent, tasked with building a terrorist cell in this country by producing a cult of native-born citizens be given citizenship? Or should a destitute Burmese woman who is terminally ill, fly to this country with her last dollar, so that her soon-to-be-delivered child be declared a U.S. Citizen and provided with a foster home and a better future?
If we can regulate that children born to diplomats residing in this country under their home country’s citizenship are not U.S. Citizens, and that children born here from invading armies are not U.S. Citizens, what do we say about children born here from drug traffickers?
For those of us who would like to support the preservation of the language of the 14th Amendment, how do we reconcile our acceptance of regulation of other Amendments, but the rejection of regulations of this one?
REVIEWING THE HISTORY
For my conservative friends who would like to read the Amendment as being more centered around slavery:
Some have argued that the constitution must be read with the understanding of the authors informing us of the meaning. This is the basis of the argument that the amendment was meant to apply to the freed slaves and their children after the Civil war.
Let’s take a look at some of the other thinking around the time of the writing of this amendment.
The 14th Amendment was written in 1866 and ratified in 1868. Let’s go back 6 years.
In 1859 John Brown led an attack on the Harper’s Ferry Armory in an attempt to start a slave revolt in the South. The attack and the trial triggered radicalism in the South and the North and is seen as one of the causes of the Civil War. John Brown was put on trial in 1860 on several charges. He was convicted late in the year and executed by hanging in December of 1860.
What is interesting to us here, is that he was executed because he was convicted of TREASON, the ONLY charge for which he was tried that carried the death penalty.
Why is that interesting?
Because in 1859, Brown was NOT a citizen of Virginia. He was a citizen of Connecticut. From the ratification of the Constitution and up till that time Citizenship was conferred by the State, NOT by the Federal Government.
U.S. Citizenship was secondary to State Citizenship until (wait for this…) THE FOURTEENTH AMENDMENT!!
It was the 14th Amendment itself that established that your citizenship in the U.S. began when you were born here or naturalized, no matter in which jurisdiction you were born.
Now, Brown was charged with TREASON against the Commonwealth of Virgina.
In order to be guilty of treason, you must first have allegiance to the state and then you must violate that allegiance. Brown “invaded” Virginia, without being a Citizen of that State, and attempted to start a slave uprising. To prosecute Brown for treason, the prosecutors had to establish that he had allegiance to Virginia, and that he had violated that allegiance. They accused him of violating “temporary allegiance to Virginia law”, and that his plot was intended “to break down the existing government of the Commonwealth.” It was his presence in Virginia that established his “temporary allegiance”, hence, the count of treason, the conviction, and the execution.
The John Brown trial was a nationally covered event. It had major political implications and was a significant factor in the nomination of Abraham Lincoln for the Presidency.
Certainly, the legislators who wrote the 14th Amendment 6 years later were well aware of the trial, the arguments made, and the implications of the laws existing then.
Today’s administration argued before the Supreme Court that the wording in the 14th Amendment “subject to the jurisdiction thereof”, should be read as REQUIRING allegiance AND domicile. This argument is used to support the reasoning that illegal immigrants have no allegiance to, nor any domicile within the U.S., and therefore do not fall within the intentions of the 14th Amendment.
Now, let’s put these two observations together. Mr. Sauer argues that the 14th Amendment requires both allegiance and domicile to be in effect.
And the John Brown trial turned on the argument that Brown, although having entered Virginia, without citizenship, without domicile, and for the purposes of overthrowing the government, nevertheless had “temporary allegiance”, and was therefore guilty of TREASON, not just of armed rebellion. For TREASON requires you to violate your allegiance.
The authors of the Amendment, particularly aware of the John Brown trial therefore, understood that their language included the concept of allegiance. They would have known quite well that the argument made by Mr. Sauer was implicit in their language.
For those of us who would like to regulate the 14th Amendment, how do you reconcile the historical setting of the language?
PRACTICAL PROBLEMS
Curiously, the government’s position on the 14th Amendment is that it should only apply to people born in this country with at least one parent who is already an American Citizen. If you support that position, there are some practical issues that you must deal with.
Why should it be only one parent?
And if only one parent, why not make it be the mother, who is actually carrying the child?
Was this clause worded to protect Mr. Trump’s children?
His first wife Ivana was naturalized in 1988, but her three children were born in 1977, 1981, and 1984.
Barron Trump was born in March of 2006, but Melania was not naturalized until July of that year.
If the “parent” could be either the mother or the father that is a citizen, how do we regulate the “father”?
If it is the father, must it be the biological father, or could it be the married partner of the woman?
How would you determine whether the partner was actually the biological father?
Would it matter?
How do we determine going forward, for each birth, that at least one parent is a U.S. Citizen?
Less than half of Americans have passports.
Only 60% have driver’s licenses with REAL ID.
Social Security cards can be issued to both citizens and non-citizens.
A small percentage of people have Military IDs.
Who will administer the issuance of Birth Certificates with the assurance that the individual born is, indeed, entitled to U.S. Citizenship? The Hospital? The local government? A new federal bureaucracy? And in the future, when that individual reaches voting age, and it is found that he/she was not, in fact born of at least one parent who was a citizen, who is legally liable for that crime? The individuals who were given a valid birth certificate and honestly believed themselves to be citizens? The hospital who issued it incorrectly? The government who certified it at the time of birth?
How do we know that the parent who claims to be a U.S. Citizen, was in fact, born of a U.S. Citizen? How many generations of records will be necessary for establishing the citizenship of a baby born going forward?
Would this spawn an upsurge in arranged marriages, between U.S. Citizen “surrogate fathers” who charge a fee to be listed as a “parent” at the time of birth, and subsequently annul the marriage?
Should there be some time limit on how long a parent has been a U.S. Citizen before they qualify for birthing a child who will automatically be granted U.S Citizenship?
What if a pregnant foreigner gets her citizenship in July and gives birth in August; is that sufficient? Perhaps there should be a waiting period of at least a year before someone is allowed to be represented as a U.S. Citizen-parent. Who would enforce this?
I have no answers to these questions. I raise them just to suggest how difficult legislation will be to enforce such a policy. In today’s political environment, the ability to compromise on a coherent strategy does seem hard to imagine. But if the government succeeds in their arguments at the Supreme Court, all of these questions (and many more) will need to be resolved.
What happens 18 years from now when a birth certificate is presented to a State Voter Registration office? Each state has a different form of birth certificate. Some may have boxes checked that affirm that the individual was born of a U.S. Citizen parent, some may not. If your birth certificate came from Montana, and you are registering in Delaware, will the registrar be able to verify the authenticity of the Montana birth certificate? If this regulation were to pass, would it then require some sort of “national birth certificate” that would be authenticated by the federal government?
Many of the people in this country who would like to prevent illegal immigrants from giving birth to children in this country who are not entitled to citizenship, also want less government control, and less regulations. Wouldn’t the necessary new bureaucracy and expense of enforcing these rules run counter to those desires?
The bottom line is that it does not seem clear, from either side of the political spectrum, what the good answers are here. It is not sufficient to wrap oneself in a cloak of idiocentric truth. Societal norms need to be simple and clear, and for this subject the solutions fail that test.