Senator Lindsey Graham has a “bright idea.” Let’s amend the Constitution, to “tweak” the 14’th Amendment.
“But there’s another problem we have in this nation that I think is novel and needs to be fixed. If you come across the border illegally and you have a child in America, automatically, that child becomes an American citizen. Under the 14th Amendment, three court cases says there’s a constitutional right to that,” Graham said in an appearance Wednesday on Greta Van Susteren’s show.
Well, for one thing, there’s a lot more than 3 court cases that say that. There are even court cases that said it before the 14’th Amendment came into being. George Will tries to read the minds of those who wrote that Amendment, trying to make the case that they didn’t mean it, it’s just been “misinterpreted”:
To end the practice of “birthright citizenship,” all that is required is to correct the misinterpretation of that amendment’s first sentence: “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.”
No, there is no “misinterpretation.” The best, and the precedent case for the 14’th Amendment is United States v Wong Kim Ark (1898).
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom. In 1890 (when he must have been about seventeen years of age), he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States, and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission upon the sole ground that he was not a citizen of the United States.
It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.
VII. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth. No doubt he might himself, after coming of age, renounce this citizenship and become a citizen of the country of his parents, or of any other country; for, by our law, as solemnly declared by Congress, “the right of expatriation is a natural and inherent right of all people,” and “any declaration, instruction, opinion, order or direction of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.”
That’s just 30 years after the amendment was passed, and the Supreme Court was well aware of the legislative history – and just what the authors of the Amendment meant. The “interpretation” was simply restating what the Amendment said – it’s pretty clear. It’s not even original, as I said – there’s an extensive series of Supreme Court decisions dating back to the 1820’s which come down to: Born here=citizen. Legally, the term is stare decisis, or “already decided.” It means that no Supreme Court (no matter how conservative or liberal) is going to rewrite an interpretation of it just to suit the current political climate. No one says you have to like it, but that’s the way it is and trying to say “what was really meant” in light of that history is just trying to rewrite it for your own agenda.
What really does bother me is not the bloviating. It’s that there seems to be a knee-jerk reaction these days on the part of the Right to amend the Constitution every time something “inconvenient” to their ideology crops up. Not just amend the Constitution, but to amend it in such a way that it removes or limits people’s rights or behavior. For all the lip service they like to give the 10’th Amendment, or the 9’th they turn around and want to make sure that something they’re against is limited. If there is one thing that history has shown, it’s that doing something like that is a miserable failure, which has to be corrected later. In this case, tinkering with something very, very basic to this country – redefining who is a citizen, is something extraordinarily dangerous. That it’s being considered bothers me a lot more than any problem that illegal immigration is causing. In this case, the “cure” is worse than the “disease.” It may sound good, but it doesn’t solve the real problems – but then again, they’re not interested in addressing those. They just want to sound good.