“All persons ... ”
By Stephen Tuttle | Nov. 10, 2018
Well, that was unpleasant, wasn't it? Now that it's over we can go back to the airwaves full of prescription drug commercials.
We should, however, take a few minutes to consider one of the proposals made by President Donald Trump during the campaign. He promised plenty … but none of it could have been accomplished since Congress wasn't even in session.
Most interesting was the notion proffered by Trump and other Republicans that they could change the Fourteenth Amendment to the U.S. Constitution by Executive Order or legislation. The issue was birthright citizenship, the long-held notion that anyone born in the United States is a citizen of the United States regardless of the status of their birth mother. It's a right guaranteed by the Fourteenth Amendment.
Here is the text of Section 1 of that amendment, in its entirety. Pay particular attention to the first two words of the first sentence.
“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 ot 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.”
It was ratified in July of 1868 as part of reconstruction efforts and in response to the Supreme Court's 1857 Dred Scott v. Sanford decision, perhaps the worst in court history. They ruled that neither Mr. Scott nor his wife and children, all of whom were born in the United States and enslaved, were entitled to freedom or citizenship because it would, among other reasons, “ ... improperly deprive Scott's owner of his legal property.”
The Thirteenth, Fourteenth and Fifteenth Amendments corrected that outrage. Birthright citizenship, upheld in an 1898 Supreme Court ruling, has been a Constitutional reality since.
The president said he could change all that with the stroke of a pen. Senator Lindsay Graham, Trump's latest sycophant-in-chief, said he'd get busy on some companion legislation. Unless that legislation is a constitutional amendment, he could save himself some time and effort.
Trump argued no other country in the world offers such birthright citizenship, so we shouldn't either. Then, as he feels obliged to do to mollify his beloved base, he repeated some xenophobic nonsense about an impending “invasion” of various miscreants, evil-doers and terrorists.
Sigh. Actually, there are at least 30 countries, including nearly all in the western hemisphere, with rules pretty much like ours. Even European countries have liberal citizenship polices. In France, England and elsewhere, birthright citizenship doesn't exist, but citizenship is nearly always granted after the child has resided in that country for five years.
Trump and the others have, for unknown reasons, decided the phrase “ ... and subject to the jurisdiction thereof ... ” gives them room to make changes. It does not.
The phrase was specifically included for the benefit of those in the country with diplomatic immunity. They are still under the jurisdiction of their own country, but they are the only exception.
Anyone born here, or even just visiting here, is subject to the jurisdiction of all federal, state and local laws. If they aren't, then by what authority can they be arrested or deported?
It's not as if Trump is the first president to try and circumvent the Constitution. Abraham Lincoln did it, so did Andrew Johnson and Franklin Roosevelt. Presidents Reagan, Clinton, Bush and Obama were all accused of it. All had some success at legislating by Executive Order and all were occasionally stopped by the courts.
State government also tried end runs around the Constitution with a host of odious, racially tinged legislation we call Jim Crow laws. There were “separate but equal” education systems otherwise known as segregation, poll taxes designed to disenfranchise the poor and minorities, mortgage red lining to prevent minorities from owning property, among others. All ultimately ran afoul of the Constitution and were tossed out by the courts.
The Trump/Graham approach is certainly the most direct: They would simply change the Constitution without that pesky bother of an amendment. They could use a refresher course on how that process works.
We assume the entire thing was nothing but a campaign stunt, an effort to increase anti-immigrant voter turnout. But if they were actually serious and persist, it will be interesting to see what the courts decide, especially should the issue arrive at the Supreme Court.
The conservative majority on the court consider themselves constructionist; basically, they believe the framers of the Constitution meant what they wrote or they would have written something else.
That makes those first two words in the Fourteenth Amendment mighty important: “All persons ... ”
All of them.