Why We Should Keep the (Whole) 14th Amendment

Margaret Thatcher once said, “Europe was created by history. America was created by philosophy.” When a country is united by ideals and not bloodlines, defining citizenship is a unique challenge, one that the United States has grappled with time and time again in its history.

In recent weeks, many of those seeking to be the GOP’s candidate for president have begun talk of getting rid of a constitutional amendment in order to redefine who is a citizen. Frontrunner Donald Trump and others would like to see the United States do away with the Citizenship Clause of the 14th Amendment, which grants citizenship to anybody born within US borders and subject to the the jurisdiction of federal laws (i.e. the baby’s parents are not foreign diplomats or have other formal relationships with foreign governments). Rick Ungar, a contributor for Forbes writes:

It turns out that those who have long enjoyed portraying themselves as the “Guardians of our Constitution”, through strict interpretation of the same, and the proponents of law & order as the bulwark of an orderly society — of course I’m speaking of Republicans — are the very folks who no longer have much use for the Constitution when it fails to meet their desires or live up to their expectations.

 
The argument around the 14th Amendment is largely due to frustration over so called “anchor babies”, a derogatory term for babies born to illegal immigrants in the United States supposedly under the pretense that the child will somehow help the parent gain legal status. It is true that for the past 147 years, all children born within US borders are legal US citizens, regardless of their parent’s legal status.

However, the idea that these babies and US citizens are helping to grant their parents legal status in the United States is a fallacy for which there is no legal backing. In fact, in 2011 there were 5,000 children in state care or foster homes because their parents had been deported. In 2013, Immigrations and Customs Enforcement deported 72,410 people who had at least one child who was a US citizen.

Still, the term “anchor baby” and the vitriolic desire to get rid of the 14th Amendment persist. The amendment was a Reconstruction Amendment, adopted on July 9, 1868, with the goal of providing citizenship to African-Americans who had formerly been slaves with no protection under the law. The Citizenship Clause of the Amendment overruled the Supreme Court’s findings in Dred Scott v. Sanford, which stated that African-Americans, even those who were free, were not American citizens and therefore could not sue in federal court.

When the 14th Amendment was originally debated, there were a few mentions of children born to immigrants on the debate floor. However, in 1868 there was no limit to immigration into the United States, meaning there was no illegal immigration at the time of the amendment’s adoption. In 1898, the Supreme Court cleared this up in United States v. Wong Kim Ark, by ruling that the children of immigrants born in the US are indeed entitled to citizenship.

Since that time, America has continued to grapple with immigrant policy and citizenship laws, but with little exception, those born within the borders of the United States are citizens of our country. While American immigration policy leaves much to be desired, the 14th Amendment has provided continuity and stability to the definition of citizen. Our country’s greatness is derived from the diversity of our citizens and the uniqueness of our history. Paternity tests or another arbitrary way to obtain citizenship would rob future generations of the philosophy and ideology on which this country was founded and continues to grow.

14th Amendment of the United States Constitution, section 1. (National Archives of the United States.)

14th Amendment of the United States Constitution, section 1. (National Archives of the United States.)

Texas abandons the 14th Amendment

United States Constitution, Amendment 14, 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.

 
Since 1868, the 14th Amendment of the United States Constitution has guaranteed citizenship to all children born within its borders. The recent influx of illegal immigration, largely from Central American countries, has led to a large increase in children born to undocumented immigrants.

flag-of-texas

This seems to have inspired some in Texas to take matters into their own hands, even if it meant abridging the 14th Amendment rights of some natural-born citizens. Officials of the counties of Cameron and Hidalgo have been refusing to issue birth certificates to children born to men and women who lack documentation proving that they are in the United States legally.

Previously, to prove their own identity, parents could use a foreign passport when applying for their child’s birth certificates. However, county officials are now insisting that parents applying for birth certificates using foreign passports must also have a current U.S. visa, leaving many children without a birth certificate.

What difference does it make? Jennifer Harbury, a lawyer representing women whose children have been denied birth certificates in a civil rights lawsuit, points out “It causes all kinds of problems.” Without a birth certificate, parents are unable to prove that a child is their own, leaving them unable to enroll their child in school or even make medical decisions for their child.

Texas “going rogue” is clearly not a new phenomenon. The Lone Star State takes pride in their Wild West roots and their independent thinking. However, Texas has taken to flying in the face of federal mandates and even the United States Constitution. Most recently, two of Texas’ county clerks have refused to abide by the US Supreme Court’s decision and are still refusing to grant marriage licenses to same-sex couples.

The failure of Texas to issue birth certificates to natural-born United States citizens because of their parentage paints an ugly picture of both the State’s contentious relationship with the federal government and their open hostility to immigrants. It is also simply unconstitutional and illegal.

This week in awful old U.S. laws

A xenophobic 1907 U.S. law stripped U.S. citizenship from any native-born woman who dared to marry a foreign man. Senator Al Franken (DFL-Minn.) is trying to secure an official Senate apology for the 1907 law — which likely would have affected many women in Minnesota in the early 20th century after waves of immigration to the state — since it doesn’t seem to be possible to reverse its effects posthumously for those wronged.

In the early part of the last century, during the rush of European immigration to the United States, Congress stripped citizenship from any American woman who married a foreigner. The little-known Expatriation Act of 1907 stayed on the books until 1940, so even after women won the right to vote in 1920, those who were married to a non-American could not exercise that newfound right.

Franken would like the Senate to offer, through legislation, its sympathy and regret for passing a law “incompatible with and antithetical to the core principle that all persons, regardless of gender, race, religion, or ethnicity, are created equal.”

Franken’s office first learned of this blemish in U.S. history from a constituent who was seeking posthumous citizenship for his grandmother. She lost hers when she married a Swedish man in 1914. Franken’s office couldn’t accomplish that, so is seeking an official apology as the next-best commendation.

 
Here is a summary of the relevant provisions from the Wikipedia page for the Expatriation Act of 1907:

Section 3 provided for loss of citizenship by American women who married foreigners.[1] Section 4 provided for retention of American citizenship by formerly foreign women who had acquired citizenship by marriage to an American after the termination of their marriages. Women residing in the U.S. would retain their American citizenship automatically if they did not explicitly renounce; women residing abroad would have the option to retain American citizenship by registration with a U.S. consul.[5] The aim of these provisions was to prevent cases of multiple nationality among women.[13] Nevertheless, these resulted in significant protests by members of the women’s suffrage movement, and just two years after women gained the franchise these were repealed by the Cable Act of 1922.[5][14] However, the Cable Act itself continued to provide for the loss of citizenship by American women who married “aliens ineligible to citizenship”, namely Asians.[15]

 
The Supreme Court upheld these loss-of-citizenship provisions in 1915 (Mackenzie v. Hare) and said Congress could do whatever it wanted to native-born American citizens’ citizenship as long as it wasn’t arbitrary and there was a set of established rules that would result in loss of citizenship. Since the law clearly said that marrying a foreigner resulted in a loss of citizenship for a woman, the majority opinion held that women couldn’t complain if they married a foreigner and lost their citizenship as a result because it was “voluntarily entered into, with notice of consequences.”

Ugh. Props to Sen. Franken for trying to make things right.