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In order to better understand this part of the 14th Amendment, we asked two experts in constitutional law and immigration law to guide us through the first chapter. There are five clauses in the amendment, but we will only deal with the first, which contains the citizenship clause and three other related sections.
The 14th Amendment is known as the Reconstruction Amendment, as it was added to the Constitution after the Civil War of 1868. This places it at an important historical crossroads, where persistent plagues of contention and misunderstanding occur. Animosity persisted in the nation and the reality of a post -Slavery America raised controversial racial and social issues.
Thomas Jefferson said the men had been created on an equal footing, but the original Constitution betrayed this promise by allowing slavery, Jeffrey Rosen said. "The thirteenth, fourteenth and fifteenth amendments were designed to consecrate Lincoln's promise of a new America."
However, as is often the case, this reasserted American ideal is far from reality. Rosen notes that civil rights and equal treatment have always been denied to African Americans, LGBT people and other citizens for more than a century after the ratification of the amendment.
And Erika Lee points out that Native Americans were not even allowed to become citizens until 1925.
"Even like [these amendments] were written, there were obviously great intrinsic inequalities and perhaps, at the time, they were not intended to apply to everyone, "Lee said.
Why is birthright citizenship such an important concept?
"Citizenship was a central issue left open by the original Constitution," Rosen said. "At the time of writing, the Constitution had acquired citizenship, but it provided no rule.In the infamous decision Dred Scott, the President of the Supreme Court stated that African Americans could not be citizens of the United States. United and that they had "no rights. that the white man was bound to respect. "
The decision of the US Supreme Court in the Dred Scott case, which is named after a slave sued for his release, has since been widely condemned.
"The 14th amendment sought to overturn that decision and define citizenship once and for all, and it was based on the birthright," said Rosen. "It is really important that this is a vision of citizenship based on the land rather than the blood.It is an idea that no matter who can be American, it 's safe. is committed to respecting our constitutional values. "
What does it mean to be subject to the jurisdiction of this one?
According to Rosen, it's one of the biggest citizenship issues. There are two clear examples of people outside US jurisdiction: diplomats and their children and, at the time of the 14th amendment, Native Americans, who were not recognized as part of the American population.
"With these two exceptions, all people physically present in the United States were supposed to be under his jurisdiction," said Rosen. "Many Supreme Court decisions have reaffirmed this understanding and, almost equally importantly, the fact that many Congressional statutes treat citizenship as a legitimate right."
But Rosen says it's a minority opinion among constitutional scholars from all walks of life.
"Although the Supreme Court has not explicitly ruled [on the instance of children of illegal immigrants], Congress has passed all kinds of laws presuming their citizenship, "said Rosen.
What is the connection between birthright citizenship and immigration?
In 1898, 30 years after the adoption of the 14th Amendment, the Supreme Court rendered a decisive decision in the case of United States v. Wong Kim Ark. Lee explains that Wong Kim Ark was the son of Chinese immigrants born in the United States.
"Asian immigrants were the first immigrants to the United States who could not be considered white," Lee said. "They are treated differently, they are taxed differently, they are deprived of many rights, and in the 1880s they are excluded from immigration and excluded from citizenship."
Thus, the main issue in dispute was: Can a person born in America be a citizen in a place where his parents could not be likewise? The Supreme Court ruled yes and the case remains the first decisive judicial decision taken under the banner of citizenship.
"[The Supreme Court’s decision] said that the right of citizenship is not a question of inheritance, that it never goes down from generation to generation, it is related to where you were born ", has said Lee. " It is the power of the place. It was a very expensive and, at the time, corrective measure to adopt a more restrictive definition, both legally and culturally, of what an American is. "
Why should it be said that citizenship privileges must be protected?
Before the civil war, states did not necessarily have to follow the provisions set out in the Bill of Rights; only Congress had to do it. The 14th amendment changed that.
"This second sentence of the amendment means that states must respect the Charter of Rights, as well as basic civil rights and citizenship rights," Rosen said. "The idea was that there were so fundamental rights, so integrated to citizenship that they could not be restricted by the states."
Despite the promises and protections of citizenship, Lee says that it is perfectly clear that different racial groups have been and are often seen as incapable or unworthy of functioning as true US citizens. After all, the fundamental rights of citizenship, such as suffrage and equal treatment, have been denied to some racial groups one hundred years after the 14th amendment.
"The idea of a law that applies to" all peoples "seems to be clear, but in reality, the debate and the laws and practices that are established are largely based on a hierarchy of rights. sure, all people, but some are in better shape and some are more deserving than others, "she says.
Throughout history, Asian, Mexican, and Muslim immigrants and their children, to name a few, have been confronted with tacit cultural warnings that prevented them from being Americans.
"For Asian immigrants, the racial argument at the time was that" No matter whether one was born in the United States or not, Asians as a race are inimitable. They are diametrically opposed to us, the Americans, "Lee said.
"It was the argument that had been used to intern Japanese citizens.It was the denial of citizenship in favor of the race:" The ability to become American, the ability to assimilate they just did not have it. "
Why was it important to legalize the rights of non-citizens?
Until now, we have covered the first article, the citizenship clause and the second, the clause of privileges and immunities. These two deal with American citizens.
The last two clauses, the legal procedure clause and the equality of protection clause, are a little different and deal with the rights of all US citizens.
Readers of Eagle-Eyed Constitution will note that the 14th Amendment contains a "due process" clause very similar to the Fifth Amendment. This, says Rosen, was a technical addition to ensure that the Fifth Amendment is not theoretically reduced to protect only US citizens.
"The 14th Amendment makes a distinction between the privileges of citizenship and those of everyone," said Rosen. "The framers [of the amendment] considered that certain rights were so important that they should be extended to all persons, and to specify that they needed a new procedural compliance clause. "
What does it mean to have "equal protection of the laws"?
"In the aftermath of the civil war, it basically meant that everyone had the right to be protected by the police and that the laws of the land had to protect all people," Rosen said. "In the 20th century, broader issues were dealt with in the 14th Amendment, as in the Brown v. Board of Education case – if segregation was constitutional." Cases involving the internment of Japanese citizens, case of decisions in terms of marriage equality, even Roe vs. Wade have equal language protection constraints and invoke the right to due process. "
The Plyler case v. Doe's 1982, in which the Supreme Court declared that it was unconstitutional for the state of Texas to refuse to fund undocumented immigrant children is another interesting case that directly relates to the debate on the 14th amendment that concerns immigration .
Why are we talking about all of this right now?
But his interest in the repeal of birthright citizenship is not a new idea. Lee says that for about thirty years, the political right has opened several avenues to explore the "reform of citizenship," a calendar that, according to her, fits in the lineage of modern American conservatism.
Lee fears that if current efforts to end citizenship are successful, it may have wider implications than most people assume. People from other countries who are legally here with a work visa or a student visa, for example, may have children who do not legally belong to the only country they know about. .
"Since the 1990s, attempts have been made to break with citizenship or to reduce it, and it did not seem like they would have a chance to succeed until now," she said. .
"For me, this does not only reflect the ascendancy of a far right position, but also the return to a very narrow and very restrictive definition of Americanness."
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