Daily Archives: July 7, 2010

The 14th Amendment – Misinterpreted and Misapplied.

The 14th Amendment was passed in response to the Civil War victory of the North and to force the South to accept the loss and control their actions. The Amendment is rivaled only by the Bill of Rights. Section 1 of the 14th Amendment was a direct response to the issues of slavery. “Black Codes” were rampant in states throughout the country prior to and after the Civil War. At the root of the Black Codes was a  basic enigma of allowing blacks to be free and accepted. While the issue existed nationally,  the Republican Congress of the post Civil War only saw the issue as one with a Southern flavor and the need for legislation. The 14th Amendment forced the South to recognize the rights of “All persons born or naturalized in the United States….”.  At the time the Amendment was passed, this was targeted at recently freed blacks who were in many respects anything but free. No one could anticipate the long-term impact this Section of the Amendment would have on US Immigration policy.

However, there are words in the 14th Amendment that, in my opinion, are not being properly interpreted.  The first sentence of Section 1 reads as follows: ” 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. ” I am targeting the words in bold for a reason – they were penned with a purpose. Recall the times in which this Amendment was written – our nation was less than a hundred years from the reign of a monarch and the terms of English would go back to the origins of our country. Subject to can be used as an adjective or a noun and the definitions are similar. As an adjective, it means being in a position or in circumstances that place one under the power or authority of another or others: subject to the law.  As a noun, one who is under the rule of another or others, especially one who owes allegiance to a government or ruler. In either case, a degree of compliance is required to be subject to something.

Stop and put some thought into the context of how this term is used. How can someone, anyone, be born and be subject to the law at the exact same moment unless one or both of their parents were already citizens? For the liberals who hit this blog by accident, this is about where the blood thinners are needed to prevent stroke. From the logical perspective, it only makes sense to have one’s parents citizens, ie subjects to the law, to make this clause work. Representative John Bingham of Ohio, who helped pass the Amendment and was principal author to Section 1, made reference to parents not having allegiance to other nations and their children being born were “natural-born citizens”. Bingham’s intent was clear on this – you cannot have allegiance to another nation (ie be a citizen somewhere else) and have your children born into citizenship here. To the best of my knowledge, if you are a citizen to another country, then you have allegiance to that country.

This Amendment was passed as a way to punish and control the South in a post Civil War era. The impact on immigration was never thought of or a goal during the drafting of the 14th Amendment. This is by no means to degrade the positives of due process and equal protection that came from Section 1, but to point out a fundamental flaw in interpretation of this section towards immigration and its impact on our country. Sooooo, what could this mean if some bright Constitutional lawyer challenged the interpretation currently being used? Hard to say with the political clap trap that would ensue, but it would be worth it to have a debate on a logical level instead of the guilt trip libs use to prevent this discussion. With Obama sending US Attorney General and lead Obamanite Eric Holder to challenge the Arizona Immigration Law (Senate Bill 1070), this should end up in front of the Supremes. Wouldn’t it be just dandy if this topic came up during the case review? 

Would changing the interpretation stop illegal immigration? Doubtful, as there are other issues that drive the masses to our borders and we have yet to find a Congress or President with the moxy to secure the borders. However, I believe it would dramatically impact the numbers of pregnant women risking their babies lives to cross into the US to have the child born here. Instant citizenship includes a whole bunch of benefits that would evaporate if this section was changed in interpretation.

 Then again, with Obamacare coming down the pike, we may be the one crossing over to get our kids born in another country.

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