Author: David Leopold on 01/05/2011
The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?
It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
These chilling words, authored in 1857 by Chief Justice Charles B. Taney, are the foundation of the infamous Dred Scott decision that led to adoption of the Fourteenth Amendment including the following “Citizenship Clause”:
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.
Directly overruling Dred Scott and codifying the common law concept of birthright citizenship, the Fourteenth Amendment forms the cornerstone of American civil rights by ensuring due process and equal protection under the law to all persons.
Thus, it is nothing less than shocking that today, after more than 150 years, during which time Americans have fought and died for the right to be free from slavery, discrimination, and other forms of degrading and inhumane treatment, we bear witness to a brazen attack on our Constitution’s guarantee of citizenship. In what the New York Times has described as an “unusual coordinated effort” perhaps as many as 14 states plan to celebrate the convening of the 112th Congress by introducing a “model” bill aimed at stripping citizenship from the children of immigrants, documented and undocumented alike.
What is not surprising, however, is that the same individuals responsible for drafting Arizona’s infamous SB 1070 “Show Me Your Papers” law and other now discredited anti-immigrant ordinances around the country, are taking aim at the Fourteenth Amendment. Those who strive to turn the clock back to 1867, when Dred Scott was the law of the land, have yet to cite a single credible study or report supporting their ill-advised position that evisceration of the Citizenship Clause will solve any particular problem associated with our badly broken immigration system. Nor do they bother to explain exactly what problem it is they intend to fix.
Does giving birth in the U.S. give a legal or illegal immigrant mother or father immediate U.S. citizenship or green card status? No. Parenting a U.S. citizen child confers no right to be in the U.S. whatsoever. Just ask our friends at the Immigration and Customs Enforcement who forcibly deport parents of U.S. citizen children day in and day out.
Does giving birth in the U.S. entitle an immigrant parent to citizenship in the future? Maybe, but only after 40 years! Here is how: to sponsor an illegal immigrant parent a U.S. citizen child must be 21; assuming approval of the requisite family-based petition, the intending immigrant parent must depart the U.S. to be admitted as a permanent resident. Since the parent’s prior unlawful presence upon departure triggers a 10- year bar to returning, absent a waiver, the illegal parent’s grand plan to obtain U.S. citizenship by “anchoring” or “dropping” a baby in the U.S. typically takes, at minimum, the better part of a half century.
Are opponents of constitutional citizenship really concerned about purported hordes of women coming over the border to give birth so they can wait 40 years for U.S. citizenship? The notion is patently absurd. Yet the attack on the Fourteenth Amendment is instructive to students of the current immigration debate. It tells us something about the real motives behind the restrictionist movement in the U.S. For years the mantra of anti-immigrant groups such as FAIR, the Center for Immigration Studies, or NumbersUSA has been captured in slogans such as “What Part of Illegal Don’t You Understand” or “Illegal Means Illegal.” The subtext? These groups would have you believe they stand for law and order; it is not immigration they oppose, but rather those who choose to disregard the law.
Birthright citizenship is enshrined in the Constitution. It could not be more legal. It would seem logical, therefore, that restrictionists and nativists would embrace the Fourteenth Amendment as part of their unwavering commitment to the rule of law. Their current effort to eliminate or “reinterpret” the Citizenship Clause offers a window into their true versus claimed motivation, namely, to stop immigration, particularly Latino immigration, even at the cost of abridging civil rights and returning our nation to the days of Dred Scott when people were viewed as commodities to be bought and sold and abused for a price.
The Citizenship Clause of the Fourteenth Amendment has very little to do with immigration, it is fundamentally focused on the preservation of civil rights. And rather than challenge a Constitutional provision that reversed a notorious Supreme Court decision, the effect of which was to dehumanize and deprive African Americans of U.S. citizenship, politicians at all levels of state and federal government would better serve this nation by devoting their precious time and tax payer dollars to fixing our broken immigration system.
With their newly minted attack on the Fourteenth Amendment, the restrictionist movement seeks to bring the immigration debate to a new low, ignoring the profound danger associated with doing so. Through their willingness to eliminate fundamental Constitutional protections, they reveal that their complaint is not about illegal immigration but America as we know it. Perhaps we should thank them for highlighting the real issue: like it or not, we are embroiled in a struggle for human rights and reclaiming America’s soul. Our battlefield is the broken immigration system and it is in that context we are challenged to define our essence as individuals, as a people, as a culture, and as a nation. We must grapple with where we have been and where we want to go. What kind of a country do we want to be? Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict out of ignorance and xenophobia critical opportunities for engineers, entrepreneurs, researchers and scientists? Do we want to be a nation that values equality and fairness or one that turns back to the days of Dred Scott?
I know which nation I want.