WASHINGTON: Approaching next Tuesday’s election the issue on voter’s mind, beyond the economy, is the caravan that started in Central America. The caravan, now about 1,0000 miles from our border, includes from seven to ten thousand people. Seventy percent of those in the caravan are young males. The debate is whether this assault by seven to 10 thousand people is an invasion, requiring military resistance. The other big debate is do those who cross the border illegally and procreate, have a baby, is that baby a natural born American citizen under the 14th Amendment to the Constitution? And is that a decision not for the Executive, or Legal, but the Judicial branch, SCOTUS.
One cannot look at a baby and not recognize the hopes and dreams that child’s parent has for their infant. And caravan aside, we are talking about the futures of babies and those, like the Dreamers, who have lived in America all their lives.
Birth does not guarantee citizenship, or does it?
For President Trump, and many scholars, their position is that the 14th Amendment does not ensure that any baby born on U.S. soil receives American citizenship. This includes babies born from the approaching caravan from Central America and Mexico. And babies that are born on U.S. soil as a part of the “birth tourism” that has parents coming to America from Asia to give birth so that the baby, now a holder of a U.S. passport, can return for school and other benefits. It will be, in the end for the Supreme Court – SCOTUS to determine.
There is legal language to examine to determine if there is a valid 14th Amendment? Maybe not.
What does the Constitution mean by “citizenship”
The particular language of most significant concern regards the language of citizenship. In part, 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 the State wherein they reside.”
The contemporary interpretation has been that this creates citizenship to any persons who are given birth within U.S. borders. Senator Jacob Howard of Michigan proposal for citizenship language was instrumental in the drafting and fostering of the amendment said in 1866:
“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Howard’s comment defines the contemporary legal battleground regarding the newborn children of illegal immigrants. However, again, is it even a legitimate question?
“There is No Fourteenth Amendment,” was the topic of an editorial in U.S. News and World Report on Sept 27, 1957. Penned by the publisher and highly respected conservative, David Lawrence, it makes the case that the 14th Amendment is not part of the Constitution. His reasoning that the 14th was never passed and ratified via the procedures provided for in the Constitution.
“No such amendment was ever legally ratified by three-fourths of the States of the Union as required by the Constitution. The so-called ‘Fourteenth Amendment’ was dubiously proclaimed by the Secretary of State on July 20, 1868.” – David Lawrence.
President Trump putting the 14th Amendment debate before the people
Since Lawrence wrote this piece, discussions have taken place in academic spheres, with very little debate via editorials or public discussion. Hence, with little exposure, his argument has gathered dust insofar as the average person is concerned.
Again, from Lawrence’s editorial:
“The Supreme Court, in case after case, refused to pass on the illegal activities involved in ‘ratification.’ It said simply that they were acts of the ‘political departments of the Government.’ The Supreme Court, of course, was relying on a convenient device of avoidance. The Court has adhered to that position ever since Reconstruction Days.”
Past discussion has been about the first paragraph of the 14th. President Trump is demanding that the whole amendment, and its intent, be a part of the discussion.
Will the Supreme Court review the 14th Amendment
The final say on whether the 14th Amendment allows for BirthRight Citizenship will fall on the Supreme Court. It is impossible to predict what they will say about such language, if and when, a case comes before it? Will they have to consider whether or not the amendment even legally exists?
Maybe it will. Probably they won’t. Perhaps academics will debate the issue Ad nauseam. And until the United States has a population of 100 million illegal immigrants. At which point our great experiment as a Republic will fail. America cannot support a majority illegal population demanding health care, food, housing and more.
All else aside, one question exists.
“How do you rule on a law passed under a part of the Constitution that does not exist?”
Only the Supreme Court will know for sure.
Images: Beautiful Babies
Hasan Albari https://www.pexels.com/photo/adorable-baby-child-daytime-1148600/
Pixabay For https://www.pexels.com/photo/adorable-baby-basket-child-265960/