14th Amendment

With all this talk about the GOP and Republicans stomping on the 14th amendment, it is well worth examining the 14th amendment in depth. We will examine the first section of the 14th Amendment. We'll leave the rest for another discussion ...

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.

Immigration and being born in the United States.

The chatter in recent days has mostly concentrated around a certain GOP member speaking about the process of crossing the border to birth a child in the United States. Lindsey Graham referred to this as ‘drop and leave,’ others ‘anchoring’, but you get the idea. We all know the lengths to which persons will go to become citizens (marrying a total slob just to get citizenship, assuming a fake identity, etc.). Why is it so extreme to think that this phenomenon is in fact a reality? Cross of over the border, have your baby, and the baby is automatically a US citizen under the 14th Amendment’s first sentence. One of the sources for this idea of overturning the 14th Amendment’s birthright citizenship clause was John McCain. He supports hearings on the meaning of the 14th Amendment’s birthright citizenship clause. Now, combined with Lindsey Graham’s comments, all of the sudden the GOP Republicans, and conservatives in general, are accused of trying to squash the 14th Amendment (click here for article).

E.J. Dionne Jr.’s thought has been published all around the internet, but is it true? Are conservatives really trying to crush the 14th Amendment? Interestingly, another associated movement has been reinvigorated with the decision of a judge this week in California: gay marriage. The 14th Amendment is also cited in defense of gay marriage, and would the conservatives of this country also quash the 14th Amendment through this issue? We will examine.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

The idea is very simple: if you are born here, you are a citizen by default. As if an unborn baby has the choice as to where s/he is born. I believe in part that this is why this clause exists – to give rights to a human who cannot make the choice him/herself. If you think about it, the only way that you can effectively control who is born in this country is through immigration policy and abortion policy. I won’t get into abortion policy, but I will say that there are cases where it makes sense. In immigration policy, there are cases where it makes sense to allow immigration, as well.

Naturalization is defined thus by the US Government: Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). There are certain requirements, which the site lists (here if you’re interested), that persons are required to meet in order to become a citizen. By doing so, they become “citizens of the United States and the State wherein they reside.” One way of bypassing these requirements would be to offer amnesty to those persons here who haven’t met the requirements, granting them the same rights as someone who was born here, or who legally naturalized here.

Many conservatives, including myself, argue against amnesty for illegal immigrants. I see amnesty as an aberration of the idea which the 14th Amendment represents: equality under the law for CITIZENS. Non-citizens are not afforded the same “privileges or immunities” as citizens of this country. That is a basic, fundamental idea embodied in the Bill of Rights. Breaking the law in order to gain entrance into this country; illegally assuming an identity of someone else through using a stolen social security number; and benefiting from citizen taxpayer dollars of a country in which you reside illegally should automatically disqualify you from residing in this country, and should require deportation when discovered. I understand the gravity of separating children from parents and family, but do we make a fuss when an embezzler or thief of our own country is separated from his family and sent to prison? It’s not like illegal aliens who are deported are being sent to jail – they are being deported back to their country as a free man/woman in most cases. Free to try and enter our country in the correct fashion, or free to try it again the wrong way and face the consequences.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

Now this is where things get interesting. The next few sections of the Amendment are talking points all around America for the defense of gay marriage. I’m going to try to explain how this doesn’t fit.

First, no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Let’s understand something: The “privileges or immunities” of citizens of the United States are specifically referring to the Bill of Rights. The first, second, fourth, fifth, sixth, and eighth Amendments more specifically (reference here). For a refresher course on what is contained in each of these Amendments, click here. The idea here is that the State can’t make or enforce laws which compromise the Bill of Rights of its respective citizens, who are both citizens of the State and citizens of the United States.

“(N)or shall any State deprive any person of life, liberty, or property, without due process of law;”

Second, no State can deprive any person of life, liberty, or property, without due process of law. Interesting choice of words here. The phrase “life, liberty, or property” is taken directly from the 5th Amendment, which speaks of the right to not have to testify against yourself, and the right to due process in a criminal trial. Easily confused with the phrase “life, liberty, and the pursuit of happiness” which is found in the Declaration of Independence. The Declaration of Independence is not the Constitution; it is a spectacular document, however, which justified the breaking away from England in pursuit of liberty and happiness. But to argue, however, that suppressing the pursuit of happiness is against the 14th Amendment, is a mistake.

“(N)or deny to any person within its jurisdiction the equal protection of the laws.”

Third, no State can deny to any person within its jurisdiction the equal protection of the laws. Equal protection under the laws is a major rallying point for advocates of gay marriage recognition. Think about this for a moment. Why would this phrase “equal protection of the laws” be incorporated into this Amendment? One thought (my primary thought) is that this guarantees citizens of the State, and the United States, the “privileges or immunities” offered to those who are true citizens. These “privileges or immunities” again are the Bill of Rights and subsequent Amendments, not the “pursuit of happiness.” Included in this, however, if freedom of religion. Equal protection of the law would require that the law protect and incriminate in all cases of US and State citizens, regardless of shall we say religion, or weapon owner, or criminal.

Now to tie this in to Prop 8, or other similar proposals: Proposition 8 established an Amendment to a State constitution that said that the only recognized marriage is that of heterosexual couples. It did not create a law which would persecute a citizen who has equal protection under the laws (according to 14th Amendment). It did not create a law which would deprive anyone of life – no one was sentenced to die due to this law. It did not deny the liberty to live with or ‘marry’ their partner of the same sex, or do whatever they wish with that person, or profess their eternal love, or anything of the sort. It did not confiscate property or possessions. How then, does it violate the 14th Amendment? It merely recognizes marriage as between a man and a woman, and formally recognizes what the majority has accepted for ages. How is it different than creating a resolution to congratulate the Patriots for winning the Super Bowl. Everybody knows it, but it wasn’t down on paper yet. And does that mean that you should fight Congress for approving such a resolution if you are not a fan of the Patriots? Have you then become somehow disadvantaged by the taking away of something that was never in existence in the first place?