View Full Version : Automatic Citizenship - Change It Or Understand It?

01-02-06, 09:22 AM
Automatic Citizenship - Change It Or Understand It?
Written by Warner Todd Huston
Monday, January 02, 2006

The issue of the citizenship clause of the 14th Amendment has been heating up more and more since my last editorial over the issue in November (go here). The popularity of somehow changing or clarifying the clause to exclude the children of Mexican immigrants is amazing and saddening.

Since my original editorial, I have been contacted by several people who have further explained their reasoning for excluding citizenship for the children born here of illegal immigrants. They say I don’t understand the real intent of the amendment and that properly understood the meaning is pretty clear that Mexicans simply don’t qualify, anchor baby or no, to have their children become automatic citizens.

Naturally, I have also been excoriated as an “open boarders” advocate, been told that I am somehow against the health of the American character, and have been called as many anti-American names as you can imagine. This would be news to some of my left leaning friends who imagine me to be as stodgy an old Founder-worshipper as exists! Such is the fate of anyone who wishes to opine, as we all know.

In my original piece I wondered aloud how we could exclude citizenship to Mexican immigrants in a country built upon immigration and I said that this inordinate fear of Mexican immigrants is counterproductive. This I still believe, but with the many messages I have been sent I now better understand the reasoning of those who claim the 14th Amendment never meant to include the children of illegals under the citizenship clause.

And I now believe they are right, to a certain extent. Unfortunately for them, being right isn’t the solution they imagine it to be.

I have also been warned by these same respondents that I am violating the same concept I myself have warned the left of violating in considering constitutional theory. Thomas Jefferson best sums up this concept in a letter he wrote to Supreme Court Justice William Johnson in June of 1823.

“On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Earlier, as president, Jefferson proclaimed, “The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption--a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible.”

And it wasn’t just Jefferson that held such a concept sacrosanct. Early Supreme Court Justice James Wilson echoed Jefferson when he said, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”

Even the English philosopher, David Hume, a man for whom most of the founders had great respect and whose ideas were closely considered, voiced a similar sentiment. “...in order to preserve stability in government, that the new brood (new generation) should conform themselves to the established constitution, and nearly follow the path which their fathers, treading in the footsteps of theirs, had marked out for them.”

All right, that’s all well and good. Point taken and I agree that we should closely consider what the originators of the Constitution or any of its amendments meant to say before we, today, pass judgment on, or consider the implications of, our national law.

But one other thing should be remembered, and I will quote another founder to this effect: “But the constitution, which at any time exists till changed by an explicitly and authentic act of the whole people is sacredly obligatory upon all.” George Washington, Father of our Country, said that one.

I repeat, “... till changed by an explicitly and authentic act of the whole people...”

In other words, we can change the Constitution. God didn’t hand it down from the mount, after all. But we should only attempt to make changes to the Constitution when no other remedy is possible. We should be very careful about how we approach that supremely important document.

Now, to understand the dilemma we are faced with in our current situation, we must consider today’s citizenship question as measured against the original intent of the framers of the 14th Amendment in 1866.

It is true, I now believe, that the originators of the citizenship clause of the 14th Amendment did not mean for citizenship to be bestowed upon the children of illegal aliens. We have but to read the words (though words not included in the actual amendment) of the man who proposed that part of the amendment, Senator Jacob Howard, a Republican from Michigan.

In 1866, Howard wrote, “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 accredited to the Government of the United States, but will include every other class of persons.”

Senator Howard also went on to clarify that he meant the “jurisdiction” wording of the amendment to confer a legal status on one whose allegiance to the USA could somehow be assured. This would seem to disqualify anyone born of parents who come from another country and who have not become naturalized citizens of this country.

It is also true that the courts upheld this interpretation of “jurisdiction” in several cases. For instance, in 1884, in the case Elk v. Wilkins 112 U.S. 94 (1884), the word was defined as meaning “direct and immediate allegiance” to the United States and not just the geographic location of the person in question. This would seem to apply to the children born here of people who are illegal and would, presumably, still hold allegiance to the country from which they originally came. It is assumed, of course, that said parents would teach their child to revere the parent’s homeland and not the land of birth of the child.

But here is the catch. The reason the politicians of the late 1860s so carefully parsed the word “jurisdiction” was so that American Indians (and for some, blacks, too) could not claim instant citizenship upon the passing of the amendment. That is right. The creators of the amendment meant to exclude Indians, many of who were at war - or soon would be - with the U.S. government. If this isn’t a racist intent, what is?

More Americans assumed that Indians were not “people” in those days than thought that blacks lacked such a status. And, if the word jurisdiction could be construed to mean mere geography instead of allegiance, then the Indians would certainly have to be considered instant citizens of the USA. And, due to the racism of most Americans of the day, this was an untenable situation. We couldn’t have “savages” as citizens of our Republic, after all.

Now, I am not going to sit here, over 140 yeas later, and decry our institutionalized racism of that day, as it is truly a waste of time. But, we simply must take this “original intent” into account when re-considering the 14th Amendment in this more enlightened day. If the original amendment meant to deny citizenship to the native peoples of this country and we were to accept the original intent of the framers of that amendment so that we could apply it to our current problem with illegal Mexican immigrants, then we must still deny our American Indians citizenship rights even today. Shouldn’t we remain consistent?

But, can anyone seriously intend to deny American Indians U.S. citizenship? I would be shocked and disheartened if anyone would. And if we blithely ignore that original racist underpinning to apply original intent to Mexican immigrants today, aren’t we piling one racist intent on top of another? Is that a message we should be sending to the world?

Boy, I sure hope not.

Of course, we could offhandedly claim that Indians deserve citizenship because they have been here so long, thereby conferring citizenship via the passage of time. But if we then turn around and prevent Mexican immigrant’s children from enjoying that same benefit now because the passage of time has been less (months or years in stead of centuries) aren’t we applying situational ethics as well as denying even those potential citizens a hundred years form now the benefit we afford the Indians in retrospect?

I still maintain that our problem is overweening welfare programs, a lack of control over our border, and an employment policy gone catawampus. Attacking the Constitution by attempting to alter the 14th Amendment, or harkening back to the intent of the 14th Amendment that originally had racist underpinnings is not the way to fix those problems.

Furthermore, this debate is sending Mexican-Americans the entirely wrong message and it is a message that can do nothing but hurt the Republican and empower the Democratic Party.

Let’s be honest about this, shall we?

In essence, we are telling potential American citizens who are currently Mexican nationals that they aren’t really wanted. We are also telling the millions already here that we Republicans are classifying them as second-class citizens. Even if that isn’t our intent it is the message we are sending.

Also, the family-oriented, conservative-minded Mexican people are a natural Republican voting block as statistics can easily prove. Do we really want to isolate that growing voter block and send them running headlong into the arms of the enemies of the United States, the Democrats?

And before some of you blow your stack and accuse me of placing politics above principle, I could throw that right back at you for mollycoddling the hard right on this issue. An argument is being made by American nativists of the right (and left) that Mexican immigrants aren’t assimilating fast enough. But, this argument is focused on the wrong party. It isn’t the Mexican’s fault, but the fault of our PC schools that teach in Spanish, our state governments that have Spanish interpreters and that print government forms in Spanish, and a wide-open border that allows anyone and everyone from Mexico to just skip across the border to partake of overweening social welfare programs.

Still, even with these issues, the children of Mexican immigrants end up being more American than they ever do Mexican citizens. They don’t want to move back to Mexico where their parents came from. They want to stay here, in the land in which they were born, in the land of opportunity and plenty. Mexico holds little draw for most of them. It seems they have a well-established allegiance to me.

I maintain that we need to fix these other aspects of our Mexican question and leave the Constitution alone. I am also proposing that we accept the common perception that being born here makes one a citizen and not harken back to the racist intent of the original amendment. The words in the amendment are plain enough without investigation to the average person.

“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.”

Do we really need to be seen parsing the word “jurisdiction” and to be looking like we are employing disingenuous legalese while continuing to ignore the real problems of our Mexican immigrant question?

Nativists and hard rightists are showing a weak hand by trying to finagle the Constitution and, in effect, trying to shut the barn door after the horses got out. We should be fixing the border problem and going back to teaching American exceptionalism and training our children to be proud American citizens not trying to play games with the Constitution.

And now, I stand ready. Sock it to me, you isolationist, nativist, Huston-haters! My e-mail box has been emptied and stands ready for all your hate mail! But, single issue extremists aside; I hope we can address this issue with some levelheaded consideration.

About the Writer: Warner Todd Huston is a free lance writer and graphic designer. His work ranges from historical essays to popular culture and has been published in several magazines and on several websites. He is the editor for Publius' Forum website at www.publiusforum.blogspot.com.