Thursday Constitution Blogging

Fourteenth Amendment

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.

Once again we get to ponder whether, and to what extent, the Constitution is relevant to our lives. Today I take a quick glance at the first section of the 14th Amendment. I draw your attention to these words: "All citizens born ... in the United States and subject to the jurisdiction thereof, are citizens of the United States...."

There are folks nowadays who argue that the children born in the United States of undocumented alien parents should not be granted citizenship. Whatever one's views on the challenges of immigration, it is evident that such a proposal would involve amending the Constitution and overturning the precedent of United States v. Wong Kim Ark, 169 U.S. 649 (1898),

Wonk Kim Ark was born of Chinese parents (subjects of the Chinese emperor) in San Francisco, where he made his residence. He twice visited China briefly and, on the second trip, was denied landing on his return on the claim that he was a Chinese subject and not an American citizen. The court found in his favor.

English common law and findings were examined as pertinent to the intent and understanding of the framers of the Fourteenth Amendment. It was noted that:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

The U. S. Supreme Court concluded that, even in the light of the fierce anti-Chinese laws of the time, Mr. Wong Kim Ark was, by virtue of his birth in the United States, a citizen thereof.

A further comment at Findlaw states:

In Afroyim v. Rusk, a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. ''[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.

This amendent basically overtuned the horrid decision in the Dred Scott case. It garnered approval of enough states for ratification on July 9, 1868. [Wikipedia]

In the archives at Orcinus one may read an extensive treatment of anti-Asian sentiment and practices in the United States in which Dave Neiwert draws on the research he did for his book Strawberry Days.

In another of his posts, Dave notes:

After all, the first "illegal immigrants" were Asians. The nakedly racist Chinese Exclusion Act of 1882 was the first law to attempt to limit immigration to America; prior to that, immigration had been open to anyone, though citizenship was reserved to "free white persons" and then expanded in 1870 to include people of African descent.

I find it extremely intersting, and pertinent, that those most exercised over issues of border control, are not pushing for a fence along our border with Canada. Why is that? It wouldn't have anything to do with skin color and culture, would it?

If the borders of this land had been "secure" in the era following 1492, most of us would not be here.
--the BB