Revisiting statements by Bush advisers, jurists and scholars on the 14th amendment

Pt. 1 of 2

After reading an article distributed by the Associated Press on June 15, 2010, I wrote to a professor quoted by the writer, Michelle Price.

Professor John O. McGinnis was described as “a conservative law professor at Northwestern University.” Among other things, I asked the professor about his statement that the “plain meaning” of the 14th amendment was clear. I mentioned the historical context of that amendment—it came about during the 39th Congress as a means of redress for freed slaves.

Information and original texts are archived at the US Library of Congress, and it’s indisputable that the amendment did not apply to American Indians and children of diplomats. Conservative author Ann Coulter points this out in a recent column: “The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: 'This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.'"

Now we don't know that those groups are exempted from current interpretations of the 14th amendment because it's in the language of the amendment. We know that because of the historical context, something those Bush advisers, jurists and scholars overlook.

Coulter also points out the liberalizing of that amendment by way of a footnote in a 1982 decision, courtesy of Supreme Court Justice William J. Brennan. Brennan was a liberal appointed to the court for political reasons by Republican president Dwight Eisenhower.

McGinnis responded: “You are right that my comment is not disputing the motivation for the 14th amendment. It is about its plain meaning. The children of illegal immigrants are subject to the jurisdiction of the United States. For instance, they must obey its laws. I read the constitution as text not as a set of motives.”

Some in Congress have mentioned a need to address the amendment by legislation. Former advisers to President George W. Bush have asked Republicans to tone down our concerns about it. Democrat voters have concerns too but their party does not address them.

In my opinion the language of the 14th amendment is plain and clear—it’s the interpretation that’s problematic.

The amendment is straightforward, even if you haven’t read all the history behind its creation. Section 1 states: “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.”

Some sources on the Web omit the comma after ‘United States’ but in an image of the original handwritten document at the LOC, the comma is there.

But it’s the very first sentence most are talking about now.

I see the phrase ‘and subject to the jurisdiction thereof’ as a qualifier in addition to being born or naturalized, not as a guarantee of citizenship. If you are here legally as a citizen or naturalized, you are subject to the jurisdiction. If you are here illegally, you are subject to deportation.

The difficult and costly issue we confront is the so-called anchor baby issue. Welfare benefits are a natural incentive. The Center for Immigration Studies published a report supporting that: “In 2008, 53 percent of all households headed by an immigrant (legal or illegal) with one or more children under age 18 used at least one welfare program…” Usage is higher for food assistance and Medicaid as you’d expect.

At present we technically require immigrants to complete applications and documentation to be in the country legally. Technically if an illegal alien is found he or she will be deported because citizenship remains with his or her country of origin.

A newborn’s rights and survival depend on the parent. The newborn can neither observe nor break a law. The parent is technically ‘subject to the jurisdiction’ of her native country. The newborn is subject to the rights of the parents.

Furthermore, if citizenship is conferred to the child of any person born in this country, why do our laws exclude children of diplomats, ambassadors and others? As I said, that is not spelled out in the amendment. If the interpretation our jurors and scholars accept is correct, then it stands to follow that all others are included.

Was the footnote Coulter cited a result of judicial activism responding to concerns about illegal aliens in the 1980s?

Why aren't children born to diplomats and ambassadors automatically American citizens?

Read Pt. 2 of ‘Revisiting statements by Bush advisers, jurists and scholars on the 14th amendment’

(Commentary by Kay B. Day/Aug. 20, 2010)