Saturday, August 14, 2010

(A)mending Our Ways

The beginning of the 14th Amendment to the Constitution, Section 1, reads in part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of of the United States and of the State wherein they reside." This Amendment, authored by Senator Jacob Howard of Michigan said about it however: "This will not, of course, included persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons." 

Recent discussion to take another look at the language of this part of the 14th Amendment by some members of Congress has set off a firestorm of rhetoric about Conservatives and the Constitution in general, and what constitutes legal citizenship in this country in particular. 

Being myself a Constitutional Conservative, I felt that it was only right that I should therefore take up the gauntlet of this subject. I will not as many might expect, make this about Hispanic anchor babies born to illegal immigrants in this country and their threat. Quite frankly, the research that I have done shows that while their may be some level of concern justified here, there is just as much information out there to show that the problem is not as large as some may want to believe (or fear)

There is a potential issue that may need to be addressed however, as it appears that current interpretation of a loophole in the 14th Amendment has created a cottage industry in "birth tourism" in this country. Packages are apparently available for world travelers who would like to visit this country just to give birth to new American citizens; providing round trip air fares, hotels, and hospital care for such purposes. While we can certainly use the tourism revenue to help balance our trade with other nations and even though the numbers taking advantage of this loophole are not large (less than 10,000 per year); the abuse of this loophole in Constitutional law should not be considered any less serious, nor should addressing them be any less important. 

Any real discussion of the 14th Amendment should begin however, with the fact that it was added to the Constitution in order redress the lack of justice afforded by the ruling of the Supreme Court in the 1857 Dred Scott v. Sandford decision; which ruled that people of African descent brought in as slaves or their offspring could never be citizens of the United States and were not afforded protection as such under that very Constitution. (Obviously, not one of the Courts better opinions.)

This injustice was later reversed, but not before the country had gone through the arduous amendment process to create the additional protections furnished by the 14th Amendment. In fact, the Court cited this Amendment in the "Slaughter-House Cases" of 1873 where it formally overturned the Dred Scott decision. 

In other words, a bad law was changed through the processes of the legal system, and protections which are provided to those living in this country through the document designed and written by the Founding Fathers for just that purpose. This change was not performed at the time that the Constitution was debated and signed, but in fact was adopted some 85 years later. 

This is exactly how the writers of this document envisioned such change, knowing that no one is wise enough to create a document that will not require periodic adaptation or modification. It should also be considered that sometimes it is the Amendments themselves that had to be changed. This was the case in December of 1933 when the 21st Amendment was passed to repeal the dictates of the 18th Amendment ratified in January of 1919. Even though the Constitutional process had been properly followed in creating Prohibition in the US in the earlier Amendment, it was felt later that a mistake had been made in ratifying it. This provision was not ignored by bureaucratic fiat however, nor overruled by executive order, but was instead taken back through the Constitutional process and repealed by the same process that created it. 

Can the 14th Amendment likewise be reviewed in the light of history and have the definitions of citizenship more clearly defined? Certainly! Can the United States go through the Constitutional process and let Congress and the people of this country decide upon any proposed changes to this previously passed amendment to our government's founding document? That in fact, is exactly what the Founding Fathers would have expected us to do. Is this process a quick and simple method of redressing what may be a wrong? No, and it was never designed to be. It is a purposely complex process, which is why after over 200 years we have only added 27 Amendments to this document. 

Of course the $64 dollar question here is whether we should we go through this long and arduous process and change the 14th Amendment? The answer is not a simple one however. While it might appear obvious that the concept of citizenship in the United States needs to be redefined in light of the present, the Amendment process may not be the necessary or even best way to go about this. It may be that the issue can be addressed by the simple legislative process of defining citizenship in this country, as proposed by Constitutional scholar Rep. Lamar Smith of Texas. 

The Constitution was written by Men and because they can never be perfect, it cannot be considered so. Like Men (and women) however, it can change; and there are times when it must do so. Fortunately for us, our Constitution, much like our conscience and sense of what is right and just, allows us the opportunity to Amend our ways.


mud_rake said...

...there is just as much information out there to show that the problem is not as large as some may want to believe (or fear).

Fear. There's the operative word. Fear of 'them' diluting the whiteness of America. It reminds me of the Page Act of 1875.

Tim Higgins said...


While there may be some small number appealing to racial fear in this country, that doesn't change the fact that the current interpretation of the 14th Amendment is being abused today. Neither does it mean that such abuse should not be changed through use of either the legal or Constitutional processes.

Using 'them' to describe those concerned with the issue and comparing their efforts today to the historical abuses of past generations simply plays the race card however and takes away any hope of having an honest discussion of the issue in this country.

mud_rake said...


I used the general term, them, to describe a large number of Americans who fear that our population is being 'diluted' because of so many Hispanics becoming part of our population.

'Them' is not used pejoratively, but rather to describe those whose obsessive fear of 'the other' obscures their sense of what truly makes America strong, i.e., the great melting pot.

One of every four children in America today is Hispanic. What shall we do about that 'issue'?

As a history buff, it is clear to me that many European nations as well as colonized African nations with minority white populations have played the race card/ethnic card often with terrible results.

The fact that those on the political right-wing have suddenly 'discovered' the imperfections in the Fourteenth Amendment late in the summer of an election year is highly suspect. Did they just learn about this recently? I doubt it. It has 'fall elections' written all over it.

What do you think about the timing of this sudden intense interest in this amendment, Tom? Are they 'just blowing smoke' or is it and intensely important issue for the governance of our nation?