The impetus for today's argument comes from an e-mail I received which led to
this article, authored by Ann Coulter, and the premise of which is that Fox News Network anchors (namely Bill O'Reilly) are ignorant fools. On this front, she may be "right", I wouldn't know, as I don't watch Fox News (or any other news, for that matter.) Her diatribe focuses on O'Reilly, who made this statement to Donald Trump regarding
his plan to deal with illegal aliens:
The 14th Amendment says if you’re born here, you’re an American!
Coulter rightly states that the 14th amendment was not intended to serve that purpose, but was intended to guarantee former (male) black slaves the rights to full citizenship in the United States. She then 'strengthens' her arguments by cherry-picking 14th amendment cases to support her argument.
Her first cherry-picked case is
Elk v. Wilkins, 112 U.S. 94 in which an Indian man (John Elk)
sued to be recognized as an American citizen, after he had separated himself from his tribe. Elk lost, in large part because the Supremes (rightly) determined that the opening salvo of the 14th amendment was intended for former slaves and other black Americans, therefore, it was not applicable to him. This case was decided on
November 3rd, 1884.
In her next selected case,
Afroyim v. Rusk, she cherry picks this one quote from Justice John Marshall Harlan II:
Unless citizenship were defined, freedmen might, under the reasoning of
the Dred Scott decision, be excluded by the courts from the scope of the
amendment. It was agreed that, since the ‘courts have stumbled on the
subject,’ it would be prudent to remove the ‘doubt thrown over’ it. The
clause would essentially overrule Dred Scott and place beyond question
the freedmen’s right of citizenship because of birth.
In her next statement, she makes light of
U.S. v. Wong Kim Ark, a case that was cited in
Afroyim v. Rusk in support of the majority opinion, which was to overturn
Perez v. Brownell which ruled that Congress, through various means, had the right to take citizenship away from citizens.
Afroyim v. Rusk (in 1967) determined that was not the case, despite the fact that Afroyim was born in Poland in 1893, and did not immigrate to the United States until 1912, and was not naturalized until 1926. Despite this, the Court ruled that the citizenship conferred by the Constitution, and in particular the 14th amendment, could not be abridged by any Congressional action.
A slight digression, if I may. In her argument, Coulter taunts O'Reilly with this barb:
I cover anchor babies in about five pages of my book, Adios, America, but apparently Bill O’Reilly and the rest of the scholars on Fox News aren’t what we call “readers.”
Perhaps Coulter ought to look in to the mirror on that charge, because the majority ruled in
Afroyim v. Rusk that:
The very nature of our free government makes it completely incongruous
to have a rule of law under which a group of citizens temporarily in
office can deprive another group of citizens of their citizenship. We
hold that the Fourteenth Amendment was designed to, and does, protect
every citizen of this Nation against a congressional forcible
destruction of his citizenship, whatever his creed, color, or race (emphasis added.) Our
holding does no more than to give to this citizen that which is his own,
a constitutional right to remain a citizen in a free country unless he
voluntarily relinquishes that citizenship.
So, Coulter cited a case which further proves what those who have suggested that Trump's idea may not pass Constitutional muster. Whoops. Maybe actually read the case, instead of just a blurb. Or, don't grab a single quote and make it seem like that is the entire point of the decision, which it was not. That's simply dishonest 'journalism'.
And to further clarify for Coulter and all others who think Trump is the cat's meow, here again is the opening line of the 14th amendment:
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.
It does not state "all citizens", but rather "all persons", so unless Coulter and her ilk are arguing that children born of illegal aliens are not "persons", the case should be closed as to whether or not they would be considered citizens. They simply are, and we are left to deal with the ramifications of that, until such time a new Constitutional amendment clarifies the issue.
Coulter quoted Justice Richard Posner of the 7th Circuit Court of Appeals in her article:
In 2003, he wrote a concurrence simply in order to demand that
Congress pass a law to stop “awarding citizenship to everyone born in
the United States.”
The purpose of the 14th Amendment, he said, was “to grant citizenship
to the recently freed slaves,” adding that “Congress would not be
flouting the Constitution” if it passed a law “to put an end to the
nonsense.”
Posner may be the most cited Justice, as Coulter claims, but he must have missed the
Afroyim v. Rusk ruling, too
. Regardless, the fact that he is imploring Congress to pass a law that would stop awarding citizenship to everyone in the country (and he may be speaking of illegal aliens here, too, for all I know, who do not actually have citizenship, even if they are treated oftentimes as if they do.) should have clued Coulter and others in to the fact that it is the way of the land right now, through Court rulings.
Coulter, earlier in her article had said this:
Still, how could anyone — even a not-very-bright person — imagine
that granting citizenship to the children of illegal aliens is actually
in our Constitution? I know the country was exuberant after the war, but
I really don’t think our plate was so clear that Americans were
consumed with passing a constitutional amendment to make illegal aliens’
kids citizens.
Put differently: Give me a scenario — just one scenario — where
guaranteeing the citizenship of children born to illegals would be
important to Americans in 1868. You can make it up. It doesn’t have to
be a true scenario. Any scenario!
I'm not going to waste time making up scenarios to answer Coulter's attack, because it's not necessary. I'll just present two other cases that used the 14th amendment as their bedrock to make a decision that had nothing to do with its original intent.
First -
Roe v. Wade, first argued on December 13th, 1971 and finally decided on January 22nd, 1973, used the due process clause of the 14th amendment to infer a right to privacy, in order to legalize abortion in the United States. Tell me, Ms. Coulter, was that the intent of those who created the 14th amendment? I would beg for any scenario in which that might be held to be even partially true. Yet, despite the fact that it was not the original intent of the amendment's authors, it was cited, and has withstood (right or wrong) for 42 plus years.
More recently,
the Supremes decided in OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL that gay marriage would be the law of the land, again through the due process clause of the 14th amendment. Again, I'll ask (rhetorically), for any scenario where Ms. Coulter or any other right or wrong thinking person might think that in 1868 our nation would have wanted to confer upon its citizenry the right to gay marriage. In 1,000,000 years, you couldn't come up with such a scenario. Yet, that is what occurred this past June, through an activist Court. The same activist Court that would be in charge of the decision regarding any future attempt to remove the citizenship of so-called 'anchor babies' (a derogatory term, if someone had asked me, even if it happens to be factual.), notwithstanding the fact that the Supremes have already ruled that citizenship, once conferred, cannot be revoked by acts of Congress. However,
as I noted in an earlier post,
ex post facto laws are strictly forbidden by the Constitution. So there's that.
I don't necessarily disagree with what Coulter's thought process is, regarding the original intent of the 14th amendment, however, it simply is illogical to presume that we as a nation are going to en masse support original intent. This is a Nation that cannot even grasp what was intended by the 1st and 2nd amendments, let alone all the way up to the 14th.
A Constitutional amendment, if written correctly, could prevent future children born to illegal aliens from gaining citizenship, and it is something that political leaders in our nation should look in to. However, it does not correct the 'problem' that already exists with regard to those citizens that are already in this nation. With regard to the illegal aliens already here, it's a lot like gun laws: simply enforce what's on the books and do it immediately. Then, if Trump or another leader wants to build a wall or protect our border better, more power to them. Until such time, we must deal with the decisions that have been handed down, whether right or wrong.
