Can a small group of legislators set America back 143 years? The answer is no - but apparently that won't stop them from trying.
In the last few months, elected officials from around the country have proposed legislation to undo our Constitution's bedrock guarantee that every person born in this country is a citizen of this country. These proposals strike at the very heart of the 14th Amendment, which ensures that the principles of equality and fairness will not be vulnerable to the politics and prejudices of any given day.
The attack on the 14th Amendment would take us back to the darkest chapters of American history, when the Constitution said that if you were not a "free person," you were only worth three-fifths of a man and had none of the rights of citizenship. The Supreme Court later expanded upon that abominable notion in its infamous Dred Scott decision of 1857, which held that a black man, whether free or enslaved, could never be a citizen in the eyes of the law.
After the Civil War, the 14th Amendment formally ended that long and inhuman chapter of American history with these words:
"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."
In that moment, we rejected the old world, un-American notion that rights were determined by parentage. Ever since, in the United States, every child is born with the same rights and embraced as an American.
State legislators are simply wrong when they claim that the children of immigrants are not "subject to the jurisdiction" of the United States and therefore are excluded from citizenship.
More than 100 years ago, the Supreme Court explained that this phrase merely reflected the long-standing common-law provision excluding the children of foreign diplomats or hostile armies from citizenship at birth. In contrast, children born to immigrants are unquestionably subject to the jurisdiction of the United States, and are accountable to our laws and taxes.
The proposals espoused by the anti-immigrant movement are unconstitutional. The 14th Amendment cannot be negated by state legislation. If this were not so, a majority could simply strip a minority of its rights by popular acclaim.
Already those leading the attack on the 14th Amendment are losing ground. In at least three of the eight states where bills have been introduced, the legislation was quickly defeated. Lawmakers in Mississippi, Montana, and South Dakota recognized that it is counterproductive to take up divisive and unconstitutional bills that do nothing to solve the real problems facing Americans. To the contrary, the proposed laws would be a costly proposition, requiring states to hire "birth police" or forcing obstetricians and nurses to demand that new parents prove their immigration status. The phrase "Show us your papers" has no place in a maternity ward.
Thoughtful people across the ideological spectrum have spoken up to defend the 14th Amendment. These include Mike Huckabee, Marco Rubio, Lou Dobbs, Alan Keyes, Meg Whitman, and Alberto Gonzales, as well as U.S. civil rights organizations, including the ACLU, the Leadership Conference for Civil and Human Rights, the NAACP, the Mexican American Legal Defense and Educational Fund, and the Asian American Justice Center. The country's most respected constitutional scholars have proved that the state legislators are wrong when they claim that the 14th Amendment is up for grabs. Leaders in American government, law, and business have recognized that the 14th Amendment is above partisan battles and immigration policy debates.
We must take to heart the lessons from the darkest moments in our history. From the enslavement of African Americans, to the federal law that barred persons of Chinese ancestry from immigrating or becoming U.S. citizens from 1882 to 1943, to the official mass incarceration of Japanese American men, women, and children during World War II, we have learned this:
We must constantly work together to give life to the 14th Amendment's promise of equal treatment under the law. The current campaign to undo constitutional citizenship would lead to a caste society in which the minority is at the mercy of the majority. America is better than that.
Daryl Metcalfe and Cecillia Wang will be among the panelists discussing the 14th Amendment, immigration reform, and birthright citizenship at 5:30 p.m. Saturday at the National Constitution Center, 525 Arch St., Philadelphia. Admission is free, but reservations are required. To register, call 215-409-6700 or visit www.constitutioncenter.org.