The Birthers and the 14th Amendment
Taking umbrage at the attention that the Doonesbury comic strip has drawn to a "Birther Bill" sitting in a House committee, Texas congressman Louie Gohmert (Republican) recently told Washington Post blogger Mary Ann Akers that the bill, H.R. 1503, has nothing to do with needling President Obama. If it ever was voted up and signed, Gohmert says, the bill would not take effect until the next presidential election in 2012. It would mandate that the campaign committees of the various contenders for president submit birth certificates and "other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility..."
Gohmert served as the Chief Justice of the Texas 12th District Court of Appeals before his election to Congress in 2004. He voted for the Central America Free Trade Agreement, supported drilling for oil in the Alaskan wilderness, and he opposed same sex marriage. Gohmert also and joined the House Immigration Reform Caucus--the hard core nativist group of 93 representatives opposing any legislative measure that smells even faintly of amnesty for undocumented immigrants. From that platform, he also co-sponsored H.R. 1868, the Birthright Citizenship Act of 2009, which would amend the Immigration and Nationality Act to preclude automatic citizenship for the children of undocumented immigrants that are born on American soil. This bill, which currently has 41 co-sponsors, is unlikely to get out of committee, and if enacted in the future it would run smack dab into the birthright citizenship provisions of the Fourteenth Amendment.
With credentials like these Gohmert fits right in with the other so-called birthers in Congress. Initially sponsored by Republican Representative Bill Posey of Florida, five of the ten co-sponsors of H.R. 1503, are from Texas. A state where the governor has given vent to secessionist sentiments. Of the total number supporting the Birther Bill, ten of the eleven are currently members of the House Immigration Reform Caucus. (The eleventh was once a member.) Even more significantly, ten of these cosponsors also support the Birthright Citizenship Act--the anti-14th amendment bill.
With these facts in mind, the Birther Bill looks more like a forward marker for anti-immigrant congressman than like a last ditch effort by conspiracy theorists hoping to avoid the reality of the Obama presidency.
The controversy over Barack Obama's birth certificate may have originally been cooked up by Republican Party operatives such as Jerome Corsi as an election year ploy, like the Swift Boat attacks used to sink Sen. John Kerry's presidential bid. (In 2006, Corsi co-authored a book with Minuteman founder Jim Gilchrist, Minutemen: The Battle to Secure America's Borders.) By the beginning of 2009, however, the birthers -- as they came to be called -- had become a phenomenon with a mind of their own. They developed as many conspiracy theories about Obama's birth as there are stars in the blue field of the American flag. Commentators tended to emphasize these conspiratorial attitudes as a way of characterizing who the birthers were. And these analyses were not far off the mark.
Nevertheless, there is another element of this worldview that needs to be understood. Consider, in this regard, the woman who stood up in a Delaware town hall last month and claimed that Obama was a citizen of Kenya. "I want my country back," she told the crowd. Her anger is aimed at restoring a country that no longer exists. In fact, that country never did exist.
If a person believes, like Pat Buchanan has argued, that white people built this country alone, and as whites, it is not a long next step to think that President Barack Obama is not a genuine bona-fide natural born American. Nor is it very far to reach the conclusion that brown-skinned, Spanish speaking immigrants are an enemy force that needs repelling. The psychological, social and political space between conspiracy minded whizbangs outside the beltway, and the anti-immigrant congressmen supporting the Birther Bill then shrinks to invisibility. They are distinct without a difference that matters. The nuttiness of the conspiracy mongers becomes less salient then their search for a brighter, whiter tomorrow.
Leonard Zeskind is author of Blood and Politics: The History of the White Nationalist Movement from the Margins to the Mainstream. Devin Burghart is associate director at the Institute for Research & Education on Human Rights.
Originally posted at TPMCafe here. Cross-posted at www.leonardzeskind.com.
H.R. 1868 . . . would run smack dab into the birthright citizenship provisions of the Fourteenth Amendment.
How so?
August 20, 2009 11:25 AM | Reply | Permalink
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.
August 20, 2009 11:31 AM | Reply | Permalink
Yessss?
August 20, 2009 11:54 AM | Reply | Permalink
What part of "All persons born...in the United States" is proving difficult for you?
August 20, 2009 12:01 PM | Reply | Permalink
Well said. There's a serious problem in this country when the people really have no idea what they're fighting for or against. Case and point here...not like we need any more.
August 20, 2009 12:18 PM | Reply | Permalink
Arguing with the deliberately obtuse is frustrating, isn't it?
August 20, 2009 12:51 PM | Reply | Permalink
Perhaps it's not the location reference but the part you left out dealing with "subject to the jurisdiction thereof". The person who wrote the original clause didn't intend it to apply to foreign citizens. Here's an example of an illegal activity supporting group intentionally omitting that part of his quote about the clause.
And, for the actual facts of the birther issue, see my my extensive coverage.
August 20, 2009 10:49 PM | Reply | Permalink
Very interesting links you have on your site.
So now I wonder- why wasn't the 14th Amendment passed with that qualification?
For that matter, why weren't Indians excluded from citizenship, too?
August 21, 2009 10:54 PM | Reply | Permalink
You misunderstand the meaning of "and subject to the jurisdiction thereof". That is meant to refer to foreign dignitaries, such as ambassadors and heads of state who may be visiting... People with diplomatic immunity.
Thus someone born in the US who is immune to US law is NOT considered a US citizen...
August 24, 2009 5:13 PM | Reply | Permalink
DUH!
August 22, 2009 6:45 PM | Reply | Permalink
The operative word in "I want my country back" is "my". These people view it as belonging to themselves alone. They resemble nothing so much as a small child who's had his candy taken away.
August 20, 2009 11:25 AM | Reply | Permalink
Well said. "America" is an abstract concept meaning the country that they imagine. "Freedom of speech" is them getting to say their piece and telling you to shut the hell up. "Freedom of religion" is their freedom to impose religion on others.
Perhaps the biggest source of problems in this country is a significant portion of the citizenry lacking any ability to empathize or even sympathize with others. By only seeing things from their own immature and selfish perspectives, they are forcing us to endure a perpetual rant of the dumbest variety while those who would capitalize on such opportunity benefit to no end.
The other day I had to explain to a friend that there is a distinction between Marxism and fascism.
I wonder if France would take me. If I told them I was Canadian? Eh?
August 21, 2009 7:31 PM | Reply | Permalink
Why did this post migrate over from the reader's post side of the page? And why didn't the comments migrate with it?
IF this was editorial error, then maybe someone should take responsibility for that. If this is policy, how will decisions about which reader posts to elevate be made?
Either way, there should be a way to retrieve the comments, and I'm rather provoked that this was not done.
August 20, 2009 12:11 PM | Reply | Permalink
Hi amike,
It was a minor publishing issue - the authors, who have been featured at Cafe before when we held a book discussion for Leonard's Blood and Politics, posted it on a reader blog instead of the Cafe main page. Sorry for the confusion - we can't just move all the comments over to this post, but we'll include a link to the original at the bottom of this one.
Thanks for your input!
August 20, 2009 12:23 PM | Reply | Permalink
Thought Ellen was right on in her question. I then gave the 14th a carefull reading. Still have to stand with Ellen on this one. (Perhaps some additional explaination of the relevant H.R. bill might better make the case.)
August 20, 2009 1:38 PM | Reply | Permalink
"...H.R. 1868, the Birthright Citizenship Act of 2009, which would amend the Immigration and Nationality Act to preclude automatic citizenship for the children of undocumented immigrants that are born on American soil."
"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."
What in the world is difficult to understand? Such an act would be clearly unconstitutional.
August 20, 2009 2:22 PM | Reply | Permalink
Good answer.
Late but good.
August 20, 2009 8:08 PM | Reply | Permalink
So, a bill with this in it:
Doesn't conflict with this?
I think that the 14th Amendment to the Constitution would trump the Immigration and Naturalization Law, no?
Why is this so hard? It seems pretty obvious to me.
August 20, 2009 3:00 PM | Reply | Permalink
You’re absolutely right that this piece of legislation seems like it should probably be struck down by the Supreme Court in about a nanosecond. However, that’s not point of the legislation; it's about moving the goalposts and raising money.
There are two important parts of your question that I’d like to address:
1. The Constitutional Question
While it seems absurd on its face, anti-immigrant leaders think they have a chance at getting this assault on a core of civil rights deemed Constitutional.
Nativists have spent almost three decades developing a deep body of legal scholarship to support their argument that the ratifiers of the 14th Amendment didn’t really mean it to include undocumented immigrants. (Of course there are those in the movement who believe the 14th Amendment was never actually ratified, but that’s a whole different issue…)
Particularly after the Supreme Court struck down California’s anti-immigrant Proposition 187, nativist groups like the Federation for American Immigration Reform pumped significant money into groups to fight the legal battle, like the Immigration Reform Law Institute (IRLI).
To exert influence on the legal community, they’ve made in-roads into right-wing legal groups like the Federalist Society. They’ve wooed law professors like Kris Kobach, a professor at the University of Missouri-Kansas City who also served as chair of the Kansas Republican Party and general counsel for IRLI (Kobach is currently running for Kansas Secretary of State).
They’ve even created phony African-American front groups to push this line of attack on the 14th Amendment.
2. Moving the Goalposts
This is more about movement-building than legislating.
Like other movements, the new nativists are itching for a Supreme Court fight. It’s a tremendous fundraising and public relations opportunity. They think they’ve got a shot at winning, but even if they don’t, it doesn’t matter.
A loss allows nativist groups to whip up further anger at those “activist judges” and rage against undocumented immigrants, thrusting the volatile issue back into the spotlight. Ultimately, it’s more about creating animus towards immigrants and immigration more than this specific piece of legislation.
As internal memos from key nativist leadership note, a loss also sets the stage for a possible push for a Constitutional Amendment to eradicate birthright citizenship once and for all, something they deeply desire.
FAIR spokesman Bob Dane, for instance, told the Sacramento Bee: “To deal with this tidal wave of human beings coming across the border, repealing the 14th Amendment would be an effective tool.” He also said, that such a move “would not harm those coming here legally. The only beneficiaries of the 14th Amendment appear to be illegals.”
Mr. Dane’s statement is contradicted by both history and the Constitution. Written immediately after the Civil War, the Fourteenth Amendment guarantees all Americans equality before the law.
The Fourteenth Amendment has been under attack ever since it was first passed, and significant sections of it were laid in abeyance during the long years of Jim Crow segregation. It was brought back into active service by the 1954 Supreme Court decision in Brown vs. Board of Education. For anyone concerned about civil and human rights, any attack on the 14th Amendment should be a cause for concern.
August 20, 2009 4:20 PM | Reply | Permalink
The idea that the Founding Fathers were perfect and if we could only read their minds to discern what they would think about things like the internet and sophisticated listening methods in an age of terrorism it would somehow be relevant is childishly silly. They had their limitations, and could never have imagined the possibilities and obstacles there are now. The fact that we have amendments speaks to the fact that they didn't think of EVERYTHING.
I agree that the guiding principles set out in the Constitution and its amendments should be maintained. And so to suggest that they weren't thinking of undocumented aliens coming here and having babies flies in the face of the words they wrote.
Simply because republicans have no scruples is no reason to pretend that they do. No bill should be passed with the idea that the Supreme Court will catch the fact that it is unconstitutional, when it is obviously so. If the lawmakers respect the job they have, they should not try to pass a law that is prohibited by the constitution under the pretense that the Founding Fathers didn't know what they were doing. There are areas open to interpretation; this isn't one of them.
August 20, 2009 5:13 PM | Reply | Permalink
While I completely agree with you, it appears as though we’ve got an uphill battle with the public.
Polling data on birthright citizenship obliteration indicates that the arguments and distortions of the anti-immigrant crowd are starting to resonate with the population (much like the lies about health care reform and Obama’s birth).
Of course, the nativists are framing the debate around how unfair it is that "lawbreakers" get this benefit for "free," not that they want legislation that would gut the 14th Amendment. Unfortunately, there are just not enough voices pointing their real agenda right now. If you’re concerned, I urge you to get involved and speak out.
August 20, 2009 5:59 PM | Reply | Permalink
Citizenship accorded by jus soli (right of ground) is part of English common law, and is distinct from jus sanguinis (right of blood) which was then in use in some other European countries. These legal principles were well known to the Founding Fathers and to the authors of the 14th amendment, so to claim that they could not have foreseen the present circumstances is ludicrous. They understood perfectly well and made a deliberate choice.
Exceptions to the 14th Amendment's grant of citizenship are based on the "...and subject to the jurisdiction thereof," part. For example, at the time it was understood that Native Americans were not citizens since they were not subject to the jurisdiction of the United States. Similarly, children born of foreign diplomats are not granted citizenship.
The Supreme Court also ruled in 1898 (United States v. Wong Kim Ark) that children of immigrants are accorded citizenship at the time of their birth on US soil.
August 20, 2009 6:47 PM | Reply | Permalink
Thanks for the citations of fact (how DARE you!) -- the republicans would refute your point (without actually saying why) because the Founding Fathers never dreamed that so many b-r-o-w-n people would be coming here and reproducing; they only imagined Europeans.
You are of course, correct; but that has nothing to do with the latest spin that they are dreaming up. I can't anticipate it and here I am in 2009! Ha Ha!
PS -- Love your contributions, mans_best friend!
August 20, 2009 7:06 PM | Reply | Permalink
Great post. I just want to enlarge on one of the points you raised, namely "Native Americans were understood to be non-citizens" and hence the "subject to the jurisdiction of the state" clause excluded them.
The authors did not name the Native Americans (or Indians, as they were then known) because there is nowhere in the U.S. Constitution, going back to its framing, that names a particular group or class of people, just as it makes reference to no deity or object of any religious system. The whole trend of the Constitution is to limit the Government's capacity to violate the rights of its citizens, not to codify prejudices, and so immortalize them.
August 21, 2009 11:06 PM | Reply | Permalink
because there is nowhere in the U.S. Constitution, going back to its framing, that names a particular group or class of people..
The Framers almost had this point perfect. It does say that (a word that would have sullied the document) certain persons shall be free circa 1808. They slipped this part in and almost no one catches it.
August 22, 2009 2:45 AM | Reply | Permalink
Art.I, Sec.9 does not use any sullying *words.* It reads (the part you are referring to)
"The Migration or Importation of such Persons as any of the States now existing may think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each person."
Again, Art.I, Sec. 2 contains the famous (or infamous) provision regarding how taxation and representation will be apportioned:
"..according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
"Importation" is obviously a reference to the importation of slaves. And, noting in passing "Indians not taxed," which nevertheless includes them under "free Persons," we have the strange (assuming we didn't know what the Framers meant) phrase "three fifths of all other Persons." This does, subject to later revision, codify a means for conducting the census in the presence of slavery. But note that in each case (importations and three-fifths) we have the term "persons."
The key difference becomes clear if we compare it to its later analogue, the Confederate Constitution. Art. I, Sec.3 (corresponding to I,2 of the U.S. Constitution) replaces "slaves" for "persons" in that infamous "three fifths" clause. Is that worse? Yes. Because...a slave is not a person.
This distinction, which might seem to be a mere quibble, becomes clearer as we move to the analogue of the clause you initially referenced. Here is how the Confederates phrased it:
"Sec. 9. (I) The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same."
If the U.S. Constitution denies personhood to no one- but speaks matter-of-factly regarding slavery without calling anyone a "slave"- it could be fairly said, as the Reconstruction Framers did say, that the Reconstruction Amendments (including the 14th) were simply clarifying what the Framers meant by "Person," by removing restrictions irrationally placed on them by the prejudices of an earlier era. The Confederate analogue sorts individuals into groups, some of which inherently and immutably are to be denied the rights of personhood.
In the process, the Confederates imply that this is what we should be doing- sorting individuals into groups, and denying rights to some, granting them to others. The U.S. Constitution carries no such implication, fortunately.
See http://avalon.law.yale.edu/19th_century/csa_csa.asp
August 22, 2009 10:27 AM | Reply | Permalink
Agreed.
Art.I, Sec.9 does not use any sullying *words.* It reads (the part you are referring to)
So the Confederate Constitution was explicit whereas the U.S. Constitution used legalese to put the matter off until years later?
The proverbial can was kicked down the road until it hit a land mine.
Subsequent amendments had to, in some shape or form, clarify the ambiguity of the language.
August 23, 2009 9:54 PM | Reply | Permalink
"The proverbial can was kicked down the road until it hit a land mine."
Most definitely. There's the story of Jefferson, waking up in the middle of the night when he has the nightmare realization that war between the South and the North is inevitable.
"Subsequent amendments had to, in some shape or form, clarify the ambiguity of the language."
Here is where the story gets truly interesting. At the Constitutional Convention, those lobbying most strongly for the adoption of the Constitution, without amendation, were the Federalists- James Madison and Alexander Hamilton most prominent among them. On the other side were the Anti-Federalists- a diverse group, including the Virginian George Mason, the pseudonymous Federal Farmer (who may have been from either Virginia or New York), and New York's Governor, George Clinton (see http://en.wikipedia.org/wiki/George_Clinton_(vice_president) ).
The crux of the dispute between the Federalists and Anti-Federalists was that the rights of the people were not sufficiently safeguarded under the document as written. Their objections were sufficiently salient that James Madison wrote the Bill of Rights to persuade enough wavering Anti-Federalists to ratify the Constitution.
(Sorry for all this grade-school history. I am getting to my point.)
The Ninth and Tenth Amendments are the very picture of "ambiguous language:"
IX -
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X -
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Intrerestingly, the CSA Constitution incorporates the first eight Amendments of the Bill of Rights into its body- but gets rid of these two "ambiguous" ones. The reason is clear: The CSA Framers substitute the formulation the Federalists used in their debates with the Anti-Federalists- that there was no need for a Bill of Rights, because the Constitution gives no powers to the Government that are not made explicit in the body of the text. This finds itself, in a perfectly canonical formulation, in the CSA text as
Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title. (Art. I, Sec. 9, clause 20).
Aside from the somewhat amusing (from a safe vantage point) irony of anti-Federal legislators mimicking the language of the most doctrinaire Federalists, this shows that the Ninth and Tenth Amendments, so vague and ambiguous, are so because the rights of the people cannot be spelled out in advance, no matter how voluminous the document, and given the inherent tendency of Governments (the Confederates are a perfect example) to use such seemingly innocuous clauses as CSA I, 9, 20 as an excuse to extend the power of the Government, not to safeguard against it. 'Legalese' serves a very constructive purpose in our Constitution, despite appearances.
August 24, 2009 2:58 PM | Reply | Permalink
Hmm my ancestors on my mother's granfather's mother's side came to this country with no papers, immediately asked for 80 acres of free land in Indiana, got them, had two more kids here somewhat charmingly named Americus and America Catterton. Funny in central Indiana they are not considered 'undocumented immigrants' still less 'illegal aliens' instead they are called 'pioneers'. I guess it was a good thing they were Irish Protestants named Catterton and not Catholic Dagos named Lopez or Heathen Chinks named Wong.
White Protestants who share my ancestry and family story never seem to slow down and consider that this country had an open immigration policy right up to the point that those immigrants stoped being Protestants from England, Ireland, Scotland, Wales, Germany and the Netherlands and started being Catholics from Southern and Eastern Europe and even Catholic Ireland. Prior to the Potato Famine and political unrest in and around 1848 in Europe that each unleashed new waves of immigration from people that didn't look or talk like the 'normal' Americans like the Arbuckles, Cattertons, Lutz's and Beisels that fill my family tree on my mother's side.
(on my Dad's side I come from bone-poor hillbillies of English descent that got trapped in Appalachia hills and hollows and to this date haven't quite figured how those Germans and Scotch-Irish newcomers beat them out in the 'Northwest Territories' (i.e. the Upper Midwest) in the 1820's and 1830's. Didn't those furriners understand that Webbs got here first!)
August 20, 2009 11:33 PM | Reply | Permalink
Oops mixed a jog. My direct ancestress was America GRAHAM who ruthlessly exploited her status as the second child born in this country to join up with another American born child of immigrants from the Catterton family to simply FILL this country with people claiming citizenship. My God if Orly Taitz's ancestors had just stood up and defend this country from the Catterton-Graham horde we could have avoided this nightmare!!! Of course in 1828 that might have been not so easily done from whatever corner of the Russian Empire the Taitz's were living. But Orly better late than never. Just because the Webb-Graham-Jennings-Catterton-Lutz-Beisel rabble got away with it in the seventeenth, eighteenth, and early nineteenth century with NO KNOWN BIRTH CERTIFICATES doesn't mean this Obama guy gets a pass
August 20, 2009 11:56 PM | Reply | Permalink
Somewhere in my possession is a very old transcript of a very old man's account of how my very oldests Indiana ancestors had to 'skedaddle' (in his words) back to Kentucky in the face of the Real Nativists in 1818 or 1820. Luckily(?) General Harrison saved the day in the Battle of Tippacanoe and so re-established our 'property rights' back then.
When I was in High School in 1972 we cleaned out my Great-Grandfather's 'town house' when his daughter, my Great-Aunt, needed to be moved to be moved to a more maintainable house in her very old age. (He also had a large and comfortable farm-house that was inherited by his oldest son. If by 'comfotable' you don't originally include indoor plumbing.) In the course of cleaning out Aunt Hazel's house, whose hoarder tendencies and hobby of breeding border collies, some of whom had the run of the house, made the task less than pleasant I ran across a box 15" x 24" x 6" box full to the brim with arrow-heads and other stone points turned up by plowing on the farm. At the same time it was pretty god-damn cool, and I have the six best of the relics in my possession (the rest are in the hands of the relevant museum). On the other hand I suspect that the plowing my family did between 1825 and 1973 probably screwed up stuff. And the fact that family farm is a couple of miles from The Indy Speedway makes the Arbuckle Farm as insignificant as the townsite we plowed up 150 years ago.
On the other hand it is a pretty cool spear point.
August 21, 2009 1:00 AM | Reply | Permalink
I don't know how they can make any kind of historical argument for that. I'm no expert on the history of immigration law in this country, but my sense from what I do know is that from the beginning through most of the 19th century, immigration was strongly encouraged, and it was largely assumed that the people who came her from abroad would become citizens. It wasn't until the 1880s that we began restricting immigration for reasons other than disease, and that was also when the origins of the majority of new immigrants shifted from western Europe to Asia and eastern Europe.
In short, I'm not convinced that the people who ratified the 14th amendment had any concept of "illegal" immigrant.
August 21, 2009 3:43 PM | Reply | Permalink
Having researched anti-immigrant groups for the last fifteen years, I think I can answer your question. The nativist arguments about the Fourteenth Amendment go like this:
1. They start by demonizing immigrants, derisively calling the children of undocumented immigrants "anchor babies."
2. Then, they contend that the original intent of the ratifiers of the 14th Amendment was exclusively aimed at former slaves. (It's about only time you'll find nativist groups express concern for African Americans). They cite some Senators from the tumultuous time of ratification.
They also include the argument that the United States didn’t limit immigration when the 14th Amendment was ratified, so there couldn’t be any “illegal aliens” and therefore the ratifiers must not have meant to include them.
3."...subject to the jurisdiction thereof..."
Anti-immigrant groups contend that the phrase was intended, exclusively, to exclude American-born persons from automatic citizenship whose “allegiance” to the United States was not complete. They therefore conclude that for the "illegal aliens" in the United States, their native country has the claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship. The courts have not taken this position.
4. Reliance on the Slaughterhouse Cases
Grasping for any legal justification, anti-immigrant groups then turn to the notorious 1873 Slaughterhouse Cases. Just 5 years after the passage of the 14th Amendment, the Slaughterhouse Cases represented a block appeal to the Supreme Court testing Section One of the relatively new Constitutional Amendment. The 5-4 narrow reading of the Privileges or Immunities Clause was then later used to prevent the federal government from adequately protecting African-Americans after the Civil War. Further, the ruling significantly delayed the application of the Bill of Rights to the states.
5. Last ditch efforts
Ignoring numerous laws and related rulings, nativists cling to hope, arguing that "this issue has never been directly decided by the U.S. Supreme Court." They then go on to shift the debate to the supposed negative impact of undocumented immigration.
Ultimately, they're hoping that swaying public opinion will lead to the changes they desire.
As for the history of American immigration law, that’s a somewhat more complicated question -- one I address in my forthcoming book Lady Liberty No More: The Rise of the New Nativism. I’ll leave that for a more detailed post later.
August 21, 2009 10:39 PM | Reply | Permalink
Except, of course, that Republicans strictly believe in the literal text of the Constitution as written by the Founding Fathers and not subject to any interpretation at all as that is Judicial Activism. ;)
If the 14th Amendment was supposed to be aimed at only ex-slaves, fine, but.. Whoops! It's not in there!
August 24, 2009 5:23 PM | Reply | Permalink
as I have posted, the tendency for 'vagueness' in the language is something that is in fact a constructive principle of the Constitution.
See Madison's "Federalist No. 51," where he says that in a republic, laws function not only to guard against the oppression of the Government, "but to guard one part of the society against the injustice of the other part."
He then goes on, in a passage of great importance, to say that the means by which a Federal government which the United States is to become safeguards against the 'tyranny of the majority' by creating an absolute barrier between the self-interest of one group (no matter how numerous) by analogy with the separation of church and state:
"In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government."
This is the reason for the 'generalized' language of the Bill of Rights (which Madison, of course, wrote). He saw as the mechanism for the Constitution to protect against tyranny its promotion of a multiplicity of 'interests,' even-handedly, by refusing to promote the biases of any majorities. This foreshadows the 14th Amendment, in fact, it could be claimed that the 14th Amendment provides the specific mechanism by which Madison's conception of civil rights is realized, just as the First Amendment provided the mechanism for the religious rights he prized.
The anti-immigrant groups, it is clear, are interested in narrowing the "multiplicity of interests," not promoting it. It's true that Madison's conception is probably impossible to attain in practice; but we are obliged to try to achieve it. The nativists might be surprised to find that they are rejecting their obligations as citizens, but ignorance is never an excuse.
August 25, 2009 5:32 PM | Reply | Permalink
So, if an otherwise severable section of a bill passed into law is ruled unconstitutional, then the whole damned law is unconstitutional? I’m having trouble with the implication that a constitutionally invalid section necessarily contaminates the entire law. I don’t think it does.
Also, the point of the post seems to be how the obnoxious bill targets our current president. So, let’s remember, this is a bill designed not for passage, but to sustain a bogus controversy surrounding Obama.
August 20, 2009 3:23 PM | Reply | Permalink
Maybe you should actually read the post. H.R. 1503 and H.R. 1868 are completely separate bills.
August 20, 2009 3:30 PM | Reply | Permalink
Gotcha. Readers should have read both bills.
I was having trouble understanding. Which one is the "Birther Bill"? I guess the title led me to believe the 14th amendment was somehow one of the more germane elements to the post rather than a side point.
Having read the post a third time, the part about the 14th here still seems to be a side point.
August 20, 2009 3:50 PM | Reply | Permalink
Our point was to highlight the origins and commonalities of both bills. Clearly, this group of legislators has much more than just President Obama’s birth as a cause of concern. These bills are aimed at the intersection of issues of race, citizenship, identity, and nationalism.
While we seem to be fixated on the outlandish conspiracy theories of the birthers, let’s not forget that the bill attacking birthright citizenship (H.R. 1868) has considerably more support than the “birther bill” (H.R. 1503). Last session, the bill to abolish birthright citizenship had 90 co-sponsors. The ramifications of gutting the 14th Amendment would be widespread and profound, yet the impact tends to get drowned out in the cacophonous furor unleashed over “illegal aliens.”
If you think the health care town halls are bad, try showing up at a meeting about immigration. I once was doing a town hall style meeting on immigration in Minnesota and after a number of complaints about how immigrants were destroying America, I had a woman yelling at me that I – yes, me, personally – had killed her niece, because allegedly an undocumented immigrant got an organ transplant before her niece. Another woman blamed power outages that summer on immigrants, while another man screamed that the local sheriff in attendance was a communist. And it went downhill from there.
While anti-immigrant groups have spent decades practicing and honing their arguments about obliterating a cornerstone of American civil rights, many of us concerned about civil and human rights are often caught flat-footed or refuse to take the issue seriously. We do so at our own peril.
August 20, 2009 5:14 PM | Reply | Permalink
Interesting.
I hadn't realized until just now that there exists a constitutional distinction between United States citizenship and citizenship in a particular state.
Normally, the two overlap for all intents and purposes. But individual states can define what they mean by residency.
So you can be a lifelong U.S. citizen, but be ineligible to vote in a presidential election because you've moved too recently to be a citizen of your new state.
In Canada, citizenship is a wholly federal matter. You can be a resident of this or that province, but there is no such thing as, say, a citizen of Ontario. Even if politicians loosely use the expression.
(In passing, I agree H.R. 1868 violates the 14th Amendment.)
August 20, 2009 3:55 PM | Reply | Permalink
One consequence of dumbed-down, be-politically-correct and feel-good public education is most Americans, and far too many American journalists, have only a vague idea of how the system of government in the U.S. functions.
I doubt that the nonsense "legislation" being discussed here could have proceeded nearly as far as it has if receiving a high school diploma still required successfully passing exams in civics classes covering How a Bill Becomes a Law, How the Constitution Can be Amended, and the Doctrine of Judicial Review.
August 20, 2009 6:16 PM | Reply | Permalink
“House Immigration Reform Caucus--the hard core nativist group of 93 representatives”
---I had no idea we had 93 Native American representatives in Congress!
August 20, 2009 9:14 PM | Reply | Permalink
nice one!
What we do have is 93 members of the House of Representatives who support draconian anti-immigrant legislation (targeting both documented and undocumented immigration) and serves as a major impediment to comprehensive immigration reform. The House Immigration Reform Caucus is headed by Rep. Brian Bilbray, who used to be a lobbyist for FAIR -- the Federation for American Immigration Reform (the oldest and most influential anti-immigrant group in the country). The HIRC serves as a pipeline to pump FAIR’s nativist proposals into Congress.
Despite the gains that the Democrats made last year, the number of members of the HIRC started 2009 almost exactly where it was at the beginning of 2007, with over 90 members. This group includes other notables including TPM-favorite Michele Bachmann and GOP Whip Eric Cantor. Six of the members are Democrats, including Heath Shuler of North Carolina.
August 20, 2009 10:51 PM | Reply | Permalink
Obviously, we need to amend the 14th amendment.
I'm sorry, but giving someone citizenship just because their mother crossed the border and birthed them on this side is ludicrous.
If a person believes, like Pat Buchanan has argued, that white people built this country alone, and as whites, it is not a long next step to think that... brown-skinned, Spanish speaking immigrants are an enemy force that needs repelling.
Of course, there cannot possibly be any rational reason why letting large number of very poor people (by U.S. standards) from a quite different culturemight be something we want to avoid. And as soon as you admit that other people than just whites are part of thsi country, immediately you must agree that anyone who want to come here should be able to. That could not possibly go badly.
August 20, 2009 10:42 PM | Reply | Permalink
In addition to the general confusion of this post overall, the key statement in it is triply false (beyond being a grammatical mess):
"And as soon as you admit that other people than just whites are part of thsi [sic] country, immediately you must agree that anyone who want to come here should be able to."
1. It is a demonstrable historical fact that non-whites were part of the United States from the beginning. No sane and informed person, including Pat Buchanan, would argue otherwise. Debates have been over issues such as the relative degrees to which whites dominated the society and shaped the institutions, and contributed to overall economic well-being versus thriving by exploiting non-whites.
2. There has never been a serious political position in favor of letting anyone who wants to move to America move there. Even in the 19th century when MOST people wanting to immigrate to the U.S. were legally permitted to do so by the U.S., there were bonding requirements to make sure arrivals were not destitute, and people opposed to such minor barriers upon the Irish and German immigrants mostly affected by them were not agitating for a maximum possible influx of, for example, Africans, Chinese or East Indians.
3. There is no logical connection between the two parts of the statement: viewing generously the historical contributions of non-whites ALREADY in the U.S. and part of it in no way implies welcoming additional non-white immigrants from outside America.
Dumbed-down or simply shoddy education strikes again!
August 21, 2009 3:45 AM | Reply | Permalink
The first sentence was pretty dumb too. Leave out the middle phrase and this is what you get:
Somehow, I don't think Glalvester meant to say that we can't possibly want to AVOID letting poor people in our country.
August 21, 2009 11:12 AM | Reply | Permalink
I believe Glaivester's remark was made sarcastically and was not meant to be taken literally.
August 21, 2009 3:56 PM | Reply | Permalink
I believe Glaivester's remark was made sarcastically and was not meant to be taken literally.
Bingo.
August 21, 2009 7:14 PM | Reply | Permalink
You may believe that he didn't mean it, but his other comments indicate that he did, regardless of his "BINGO" comment below. What a creep, not even to stand by his own words. Here are some of them from above. Reconcile this with what you wrote:
glalvester is a pat buchanan dining room table. Accept it.
August 21, 2009 7:58 PM | Reply | Permalink
What a creep, not even to stand by his own words.
What an idiot, to so misinterpret me.
You seem to think that I am claiming that my anti-immigration remarks were sarcastic.
In actuality, what I am saying is that my pro-immigration remarks were sarcastic.
August 22, 2009 11:46 AM | Reply | Permalink
That is, I am really in favor of restricting immigration, and remarks that made the case for more immigration were not meant to be taken literally.
August 22, 2009 11:47 AM | Reply | Permalink
It is a demonstrable historical fact that non-whites were part of the United States from the beginning. No sane and informed person, including Pat Buchanan, would argue otherwise.
I have not denied this.
There is no logical connection between the two parts of the statement: viewing generously the historical contributions of non-whites ALREADY in the U.S. and part of it in no way implies welcoming additional non-white immigrants from outside America.
I agree; that was the point I was making. I guess my sarcasm was a little too subtle.
My point was that Devin Burghart and Leonard Zeskind seem to be implying that any desire to restrict immigration stems mainly from an ignorance of the contributions of non-whites to U.S. society, and I was parodying that attitude.
August 21, 2009 7:25 PM | Reply | Permalink
Just to be clear, I am not suggesting, as some might interpret it, that we need to deny the contributions of non-whites to our culture in order to prevent unrestricted immigration. I am poking fun at the idea that the writers of this post have put out, that once you admit that more than just whites have contriuted to this country, that you must then open the borders.
August 22, 2009 11:49 AM | Reply | Permalink
Education includes learning to read as well as learning to write. Developing both skills in English takes a lot of practice, as any non-English speaking immigrant to the US no doubt knows well.
By your fifth post, Glaivester, you finally managed to express yourself clearly:
"Devin Burghart and Leonard Zeskind seem to be implying that any desire to restrict immigration stems mainly from an ignorance of the contributions of non-whites to U.S. society, and I was parodying that attitude."
Congratulations.
Next step is to work on reading (and basic logic). Burghart and Zeskind are actually saying something rather different than what you thought they said. They are addressing NOT what is behind desires for immigration restriction, but what is behind the "Birther" nonsense. Your formulation has it exactly backwards. They are saying "Birthers" are mainly motivated by anti-immigration sentiments, NOT that anti-immigration sentiments come mainly from racist "Birthers."
There are, of course, legitimate arguments both for and against large scale immigration. One of the best arguments for immigration, and against immigration restriction, is that public education can often remedy shortcomings that might come along with large numbers of foreigners moving into the country. Of course, that argument may be more difficult for poorly educated people to grasp (whether immigrants or not), but immigration laws are fortunately made by representatives of all Americans.
August 25, 2009 10:46 AM | Reply | Permalink
One of the best arguments for immigration, and against immigration restriction, is that public education can often remedy shortcomings that might come along with large numbers of foreigners moving into the country.
One of the best arguments against large-scale immigration is that this doesn't seem to be working very well with Latino populations. The fact that Japanese and Chinese immigrants from similar economic situations tdo so much better suggests that the problem is not necessarily the fault of the host country. In other words, what you say is theoretically true but not very well supported by empirical evidence.
Of course, that argument may be more difficult for poorly educated people to grasp (whether immigrants or not), but immigration laws are fortunately made by representatives of all Americans.
That people do not behave as our models suggest they should may be difficult for people with education but no critical thinking skills (or criticial thinking skills that have been dulled by political correctness).
August 28, 2009 2:53 PM | Reply | Permalink
"...the bill would not take effect until the next presidential election in 2012. It would mandate that the campaign committees of the various contenders for president submit birth certificates and "other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility..."
This isn't already law?
Slightly off topic, but still pertinent rant: I have never met a person that has actually had to deal with illegal aliens who thinks they deserve the freebies they get. How many of you have had one of these people wreck your car (with no insurance) and then rip the tickets they get up right there in front of the cops and disappear? Guess what? It happens daily in Texas.
The fact that these people just have to run across the border and drop a baby to get carried by the tax payers for the rest of their life is the problem. They are criminals. The fact that they had a child on US soil doesn't change that fact.
And, before the elitists start yelling at me, I am all for people who come here the legal way. I'm happy for them. It's the criminals that fly under the radar while living off our taxes that make me mad. If I'm a bad person for wanting that to stop, so be it.
August 21, 2009 8:57 PM | Reply | Permalink
I actually think anybody without insurance who ends up in a collision is unworthy of his rights. Doesn't mean he doesn't have them. One need look no further than the drunken-driving statutes in my home-state to know this.
Of course, up in Omro, Rhinelander, Wausau, & such, the perps are usually Caucasian, almost always Northern European (mostly, German), & Church-going but not God-fearing, gun-owning, GOP-voting REAL Americans. So, it's okay. Vehicular homicide while smashed is okay -- if one is a Republican.
August 24, 2009 4:56 PM | Reply | Permalink
First, nice to talk to a fellow Texan.
I'm pretty sure that anybody, illegal or not, who tears up a ticket "right there in front of the cops" would disappear to the local jail for a while.
As far as "Free Handouts" goes, that is not true. Remember that illegals pay taxes like everyone else, and receive less services because they are illegal. Income tax withholding happens at the employer level. The illegal just can't file a tax return to get a refund, that gets left with the government.
Still pays sales tax, only runs the risk of being identified as an illegal by using the services that their tax pays for.
Still pays Social Security (again, at the employer level), only they can't collect benefits when they turn 65.
So from a governmental standpoint, illegals are a gold mine.
August 24, 2009 5:31 PM | Reply | Permalink
If the right would read , they would learn that the President could not have been born in Kenya.If his mother gave birth to him in Kenya during the Mau-Mau rebellion then he is the Messiah.What type of person would take his white wife to a war zone to give birth to a black child?All this while the British were killing Natives at a alarming number.A Caucasian woman around British subjects at war with Black Africans, married to a black African would have been ostracized.
August 22, 2009 6:37 AM | Reply | Permalink