Posts Tagged ‘14th Amendment’


The Citizenship Clause and Anchor Babies

   Posted by: Robert    in Law

I was recently linked to an article by Ann Coulter which offers her take on the legal history of the citizenship of illegal alien born babies under the 14th Amendment.  Her article is interesting, and quite possibly the most reasonably presented argument I’ve seen from her.  The essence of her article is to point out that anchor babies — children born of illegal aliens on US soil which illegal aliens can use as an “anchor” to tie themselves to the US — are the product of a misunderstanding about the meaning of the 14th Amendment.  As she points out, the question whether the Citizenship Clause would apply to the children of aliens came up at the time the Clause was drafted, and rejected by its author.  Unfortunately, the history on this point is not so clear as she would cause us to believe, and is, in any case, irrelevant to the text of what the 14th Amendment actually says.

The Citizenship Clause of the 14th Amendment 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

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

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.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.

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Privileges, Immunities, and Incorporation

   Posted by: Robert    in Law

I have recently been spending some time thinking about some of the arguments being made in the Chicago handgun case, McDonald v. City of Chicago, currently before the Supreme Court.  At issue in that case is whether it is constitutional for states and local governments to ban the possession of handguns, in light of last year’s ruling n DC v. Heller.  The case naturally hinges on the question of incorporation, a doctrine created and selectively applied by the Supreme Court to bind portions of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment.  Legal conservatives, like those bringing McDonald, have long complained that the Due Process Clause, properly understood, contains no such doctrine.  To supplement the shortfall, they have brought before the Supreme Court an argument that the 2nd Amendment is incorporated by the Privileges and Immunities Clause of the 14th Amendment.  I do not think this is so.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause’s] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

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Gun Rights and the States

   Posted by: Robert    in Law

More a post of first impression than anything else, but I again find myself irritated at the NRA and the rather bizarre copy of the Constitution that they appear to possess.  As SCOTUSblog reports here and here, the NRA has filed an appeal in the Supreme Court asking the justices to apply the Second Amendment against the states, through a method known as incorporation.  While the affront to federalism brought by incorporation is disturbing in any case, it is particularly so in the Second Amendment context, given that amendment’s deep ties to federalist concerns.  But what occurs to me is that there may be another way for the NRA to get what it wants without needing to cast any pretense of concern for state sovereignty to the winds to get there.

The key is a practice I’ve seen used by state courts that usually comes up in the equal protection context where state constitutional provisions are held to be identical in scope to their federal constitutional counterparts.  In the case of equal protection, I have generally heard state courts say, in essence, that their state equal protection guarantees extend no further than federal equal protection guarantees.  Of course, equal protection guarantees cannot be less.

While state courts certainly are not bound to maintain equivalence, there is a compelling logic to keeping a consistent meaning for the same set of words when those words appear in both federal and state law.  At a minimum, it promotes a consistency of law which is well within the role of the courts to foster.  More importantly, when state constitutions adopt pre-existing provisions of federal law or the federal Constitution, it tends to be because they want to adopt the meaning of the federal provision, which is precisely what the Supreme Court had declared.

Of course, differently worded state constitutions and state courts which choose to disagree with the Supreme Court as far as their own state constitutions go remain a risk to the NRA position under my approach.  Nevertheless, it is far less judicially activist and destructive to federalism than the path currently being charted by the NRA, and it would certainly not preclude them from returning to the Supreme Court with their activism later if the more modest approach doesn’t pan out.

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Shenanigans of Law in Alabama

   Posted by: Robert    in Law

I happened across a curious post on one of my more liberal leaning legal blogs a couple of days ago.  Apparently, a group of voters has filed a lawsuit in one of Alabama’s circuit courts challenging the legality of the Constitution adopted by the state in 1901.  The complaint and supporting document present the claim that the Alabama Constitution is invalid under the Federal Constitution.  Their complaint essentially boils down to the argument that the Constitution was ratified as a result of racist, pro-white voter fraud, making the document and the government it creates illegitimate.  As I see it, this complaint faces a number of deep flaws.

The first and most obvious question to ask in a case like this is, “What about the 14th Amendment?”  It is relied on as one of the two main authorities in the case under which the plaintiffs seek to have the Alabama Constitution declared invalid.  However, as the Utah Supreme Court observed in Dyett v. Turner, there are historical reasons to doubt the legitimacy of the 14th Amendment as well.  Despite these comments from the Utah Supreme Court, there is no indication that any court (Utah’s Supreme Court included) actually believes that the 14th Amendment is not, in fact, an enforceable part of the Federal Constitution.

Moving on to more legalistic matters, the Alabama courts would face an immediate problem if they rule in favor of the plaintiffs in this case.  Plaintifss seek, as a remedy, that the Court “issue a permanent injunction enjoining the [State] from continuing to enforce the [Alabama Constitution].”  More to the point, they believe that the “Constitution was never passed by the people of Alabama” and is, therefore, “invalid.”  If the Court rules that the Alabama Constitution is invalid, it must necessarily also rule that it has no legal authority upon which to base its judgment.  Like all of the other departments of government, Alabama’s judicial department derives its authority, ultimately, from the Alabama Constitution.  Therefore, if plaintiffs are correct, they have asked for relief from a tribunal which has no more legal authority than I have.

Since plaintiffs would put me on equal footing with the Alabama courts, I might as well spend a moment or two talking about the actual merits of their claim.  I find it interesting that in their entire complaint, plaintiffs cite only a few brief words in regard to things like poll taxes and property requirements which, even assuming that those are sitll operative provisions of the Alabama Constitution, are assuredly not enforced (or enforceable).  Importantly, although “[t]he harm … is experienced by each new generation of voters,” (complaint) they fail to set out any harm more tangible than some kind of inherited disenfranchisement.  This  hardly strikes me as the type of claim which is “concrete and particularized” (Lujan v. Defenders of Wildlife).  As far as the complaints about the racist history and language go, I know of no precedent holding that laws with racist history or which use racist language are automatically invalid in the absence of actual racial disparity, and there is no actual disparity claimed.

With a bit of luck, the Alabama courts will find a way to resolve this case quickly and at minimal taxpayer expense.  The easy, obvious, and proper thing to do would be to dismiss the case on a matter of standing or some other preliminary issue without even giving the lawyers an opportunity to try presenting the merits of their claim.  To be sure, logic forbids any Alabama court from ruling in plaintiffs’ favor, which is reason enough to bounce the case as soon as possible.

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