The Fourteenth Amendment Guarantees Birthright Citizenship To All

Since Donald Trump is totally unaware of anything he doesn't learn from tv, he cannot know that his immigration plan is pure racism. The tip-off comes from right-wing websites and Ann Coulter, who have this strange idea that the Fourteenth Amendment does not guarantee US citizenship to anyone born in the US. They cite Judge Richard Posner as the most authoritative holder of this view. (It's amazing how all these websites and right-wing pundits use exactly the same language and arguments, isn't it?)

The American Civil Liberties Union disagrees:

Citizenship under the 14th Amendment includes those born in the United States to parents who are not U.S. citizens. This was clearly established over 100 years ago by the U.S. Supreme Court.

The Fourteenth Amendment states it clearly:

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.

Someone reading this Amendment should logically conclude that anyone born in the US, regardless of the nationality of his parents, is a US citizen. But Trump's lawyer friends say that, no, the Congress that passed the 14th Amendment intended it to apply to slaves and their children, not to the children of immigrants. Because, they say, the Congress in 1868 didn't have an immigration problem.

As with almost everything to do with racists and their beliefs, this opinion presents a false idea of history. That's how they operate. In fact, immigration was a huge issue in 1868, much bigger than slavery in the North and West. There was no concern about illegal immigrants in 1868 because immigration was uncontrolled. Whoever wanted to emigrate to the US was welcome. Even the Chinese--who were widely regarded as an inferior race--were allowed to freely immigrate because their labor was necessary for the completion of the transcontinental railroad. Between 1880 and 1920, 20 million people immigrated to the US. All of their children enjoyed birthright citizenship.

Why should we change the law now, if it has worked so well in the past? There is only one answer. Many people who declare that the Fourteenth Amendment doesn't mean what it says are avowed racists who believe that Latinos are incapable of governing themselves.

The first court test of the 14th Amendment was US v. Wong Kim Ark (1898). The Supreme Court ruled that Wong was a citizen of the US by virtue of his birth in San Francisco and could not be prevented from entering the country. Since that time, numerous court rulings have upheld this ruling and concurred that the 14th Amendment does, indeed, make all children born in the US American Citizens, regardless of who their parents are. In the early days, the acceptance of birthright citizenship was essential, since about 15% of the population came from other countries and their children were only citizens by virtue of their being born here.

Judge Posner states his viewpoint in Oforji v. Ashcroft, 354 F.3d at 621 (2003). Posner concludes that the courts cannot outlaw birthright citizenship, but the Congress may, simply by passing a law. Posner unaccountably gives as one of his arguments against birthright citizenship that the 

Federation for American Immigration Reform [FAIR] estimates that 165,000 babies are born each year in the United States to illegal immigrants and others who come here to give birth so their children will be American citizens

This figure is pure fiction. Factcheck.org concludes that, while it is true that there are millions of immigrants who have children in the US, Mexicans come to the US to work, not to have babies. 

According to the Southern Poverty Law Center, the Federation for American Reform (FAIR) is a hate group whose sole purpose is to severely limit immigration into the United States. Its members include avowed racists and eugenicists like FAIR founder and Board Member John Tanton, who wrote

I've come to the point of view that for European-American society and culture to persist requires a European-American majority, and a clear one at that."

— John Tanton, letter to eugenicist and ecology professor Garrett Hardin (now deceased), Dec. 10, 1993

and FAIR President Dan Stein, who claimed that the 1965 immigration act 

was a great way to retaliate against Anglo-Saxon dominance and hubris, and the immigration laws from the 1920s were just this symbol of that, and it's a form of revengism, or revenge, that these forces continue to push the immigration policy that they know full well are [sic] creating chaos and will continue to create chaos down the line. 

These are not just the views of racial supremacists, although they are that. These are the views of eugenicists, people who believe that inferior people should be eliminated to make way for superior ones. They view Latinos as both inferior and expendable, since they want to maintain an Anglo-Saxon majority by any means possible.

Judge Posner should have known the racist basis of FAIR and he should have realized that statistics provided by them could not legitimately be relied on. Did he intend to incorporate the racist, eugenicist views of that group into the legal record? If not, he should apologize for his actions. If he did, then all of his judgments should be reviewed for racist bias and expunged from the record if necessary.

Our Decrepit Constitution: US Supreme Court merges with the robber barons

The years after the Civil War marked the beginning of modern America. Some people became extremely rich through government largess. The government paid companies to build railroads by giving away the land the rails passed by. Slavery was replaced by a system called sharecropping that tied people to the land like medieval serfs. Factories paid children and women starvation wages and forced them to work 60 hours or more a week. Corporations made even more money than they had before the war using slave labor. Financiers became the heroes of America by loaning the government enough money to end recessions—which financiers were responsible for starting.

The Progressive movement arose in opposition to corporate abuses. For awhile it looked like life would get a little easier for workers. The Supreme Court ruled (Munn v. Illinois (1877)) that legislatures could pass rules to control corporate pricing under the Commerce Clause of the Constitution. This decision gave hope that We the People could fight back against the corporations that were sucking the life from the country.

Vain hope. The courts soon became the willing bedfellows of the corporations. The Supreme Court ruling in Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota(1890) struck down a Minnesota act that established a railway commission with the power to set rates and timetables, which were the instruments by which railways exercised their monopoly powers. The Court ruled that the courts, not the legislatures, should decide what rates were appropriate.

This action reversed the spirit of Munn,which appeared to reserve that power for the legislatures, and at the same time made corporations more powerful than the government. The corporations were able to influence legislatures through largess. The people could elect legislatures that looked out for their interests, but the Court now ruled that those anti-corporate elections would count for nothing.

The Supreme Court was moving toward granting corporations full personhood. The framers had not foreseen this development, nor provided for it in the Constitution. The Court declared in Pembina Consolidated Silver Mining Co. v. Pennsylvania (1888) that corporations were persons entitled to protection under the due process clause of the Fourteenth Amendment, despite the fact that the Fourteenth Amendment was intended solely to protect the rights of freedmen. This definition gave corporations protection from "unreasonable regulation" and taxation. In practice, it gave them virtual immunity from regulation and taxation, since the courts alone could determine what was reasonable and appeals were costly and time-consuming.

Another pro-corporation development at this time was the principle, right of contract, beginning with Godcharles v. Wigeman, 113 Pa. St. 431 (1866). The court in Godcharles declared that a law requiring laborers to be paid in cash instead of company scrip was degrading to the laborer, because it robbed the laborer of his right to make a contract for himself. By this declaration, the court accepted the fiction that what existed in the law books existed in reality and that a Corporation could not compel a laborer to accept company scrip in lieu of wages, because the laborer had an equal bargaining position with the corporation.

The courts forbade the state legislature to interfere with any contract duly made between two parties and particularly applied this principle to contracts between laborers and corporations, which they considered equal partners in an employment agreement. This policy meant that no law could interfere with an employment contract, no matter how unfair its terms might be to the laborer. Courts ignored the obvious fact that corporations, which had everything, were not equal to laborers, who had nothing. Courts assumed that laborers had the ability to walk away from any contract they did not like, despite the impossibility for most laborers, hardly able to feed and clothe their families, to do any such thing. Right of contract existed only in the minds of corporate lawyers and judges, not in the real world of need and subsistence.

The courts wielded the Fourteenth Amendment due process clause to protect corporations from state regulation. While doing so, they struck down numerous progressive laws that provided laborers with the eight-hour day, the right to be paid weekly, the right to work less than sixty hours a week, the right to be paid in cash rather than company store credits, the right not to pay higher prices than non-employees in the company stores, and many others.

The courts of the late nineteenth century ignored the common law precedents of the eighteenth century in their attitude toward the poor. They forgot the words of Lord Northington: “Necessitous men are not, truly speaking, free men; but, to answer a present exigency, will submit to any terms that the crafty may impose upon them.” (Vernon v. Bethell (1762)). In modern English, this means, "Poor men are not, truly speaking, free men, but to answer a pressing need, will accept any terms an unscrupulous employer may offer them."

See Arnold M. Paul, Legal Progressivism, the Courts, and the Crisis of the 1890s, Business History Review, 83 (1959) at http://law2.umkc.edu/faculty/Profiles/Kobach/AmerLegalHistory/Winter2005/Legal%20Progressivism.pdf

Our Decrepit Constitution: Remedies (Part One)

The National Initiative Amendment (NIA) is the only way to resolve our Constitutions problems in the long run. There are a number of stop-gap measures we can take without amending the constitution, but these would be just as hard to pass as the NIA, so there would be little point in wasting our energy on them. Once we give the power to amend the Constitution back to We the People, there are a number of measures we can take to restore the balance between competing interests.

1. Increase the number of Senators

The Constitution provides for two senators to represent each state. This has led to many problems, chief among them the fact that California, with 35 million residents, has the same number of senators and the same relative power as Delaware, with under a million. This imbalance leads to defeats for issues of interest to large states, such as gun control.

The U.S. Senate was modeled on the House of Lords. Like the Senate, the Lords became a barrier to passing bills for the common good. The House of Commons partially resolved the problem by increasing the number of Lords. We, the People, could resolve the Senate problem by adding another 100 Senators to be elected at large. By definition, these Senators would represent a larger constituency than any of the current Senators. Small states would still have disproportionate representation, but nothing could stop one of the small-state senators from running at large. Such a candidate must appeal to a broader electorate than one running in a small, homogeneous state.

Other, more drastic measures may be taken. The Senate could be abolished altogether, or Senators could retain the ability to block bills (which is their primary function now) but only for three years.

2. Elect the Supreme Court

Life appointment for Supreme Court Justices was intended to free them from political pressures, giving them liberty to vote their conscience. This idea never worked very well, since the Justices are nearly always members of the elite classes. Recently, the idea of apolitical Justices must appear a cruel hoax. Observers can usually predict which justices will join a majority. Presidents appoint younger and younger justices to prevent the opposing party from gaining a majority on the court. Retiring justices choose the terms of like-minded presidents to give up their seats. The Court has actually become a third legislative body, one with even less variety of opinion than the Senate.

We, the People, should make the Court responsible to us by forcing the Justices to run for election every seven years. Renowned jurists who can't get seats on the current, highly politicized court, should be happy to run for such a prestigious post. Presidents could still fill vacancies with the consent of the Senate, but they would be forced to make better choices if they want their appointees to withstand an electoral challenge.

3. Normalize the Laws

Another measure would be to remove the appellate responsibilities from the court, or abolish the federal bench entirely. The Federal Bench exists side-by-side with the state courts, with many of the same responsibilities. All courts should be combined into a single, national system of district courts and appellate bodies. Instead of striking down laws they deem improper, the judges in this system could replace the offending laws with others that have been passed in other states. Many states have similar legal codes already. This blending of federal with state authority would discourage state legislatures from passing frivolous laws that pander to the electorate.

This system would also discourage well-heeled groups like ALEC from changing the laws, state by state, to favor corporations and the wealthy. Judges would be free to ignore changes made by ALEC and other groups in favor of more moderate laws.

Lawyers should be allowed to practice in any state, since the laws would, over time, tend to be similar. State Bar Associations would lose their monopoly control of the legal profession. Legal professionals could practice in any state without fearing law suits from the State Bar. The cost of legal assistance would decrease, enabling ordinary people to better afford lawyers.

4. Abolish the Electoral College

We, the People, should elect presidents by majority vote. If no candidate achieves a majority, we should hold a runoff election. Third parties would be able to participate in elections without fear that their participation would defeat candidates with whom they agree on most issues.

There is currently a National Popular Vote movement (NPV) to sidestep the electoral college by passing laws in each of the states. These laws commit the states to cast their electoral votes for the candidate who wins the majority of all votes cast in all states. NPV flips current presidential campaigning on its head. Candidates would spend most of their time and money in the largest states instead of in the key swing states.They would have to take positions on important issues instead of avoiding them.

NPV avoids the Amendment process but ends up with laws that can be repealed without using the Amendment process. It also fails to institute a runoff system, as described above. It does not encourage third party candidates, since it will rob them of any electoral votes they might have gotten using the current electoral system. This could lead to appeals through the courts, throwing elections into confusion for other reasons, such as when a third-party argues that the anti-electoral college law prevents third parties from getting the votes necessary to appear on ballots. Current election laws are a tangled thicket that may cause unforeseen problems.

The instability of the NPV, which could be undone by the votes of only a few states (assuming it ever passes) will lead to more electoral confusion, not less. The supporters of this plan have a good idea, but the execution would likely be chaotic and reversible within a few years. NPV will go into effect when the states that have adopted it have enough electoral votes.

NPV now has about 50 per cent of the states necessary to put its plan into action. From here on, however, it will run into the same problem of the electoral college, only in reverse. Each state that passes NPV will now be a state that benefits from the current situation.

Another movement, much less realistic, to reform the electoral college would divide the nation into 50 new states with equal populations. The logistics of this proposal make it impossible. State governments are huge, unwieldy bureaucracies that have taken root in one place for up to 200 years. Moving one of these bureaucracies to a new location would create a complex mess and cost a fortune. Moving 50 of them might take another 200 years.

5. Undo the Corporate Strangle Hold on Our Laws

In the late nineteenth century the Supreme Court discovered that the Due Process Clause of the Fourteenth Amendment applied to corporations, though they couldn't figure out how to use it to help African-Americans. In 1890, Congress passed the Sherman Anti-Trust Act to regulate corporations. The Courts permitted the Sherman Act to be used against Unions, which it declared illegal combinations as defined by the law. In United States v. E. C. Knight Company (1895), the Supreme Court upheld the appeal of the American Sugar Refining Company, which controlled 98 per cent of sugar refining in the U.S., because this control did not constitute a restraint of trade.

During the last years of the twentieth century, Congress responded to public concern about corporate lobbyists influence in politics by passing modest reforms. In Citizens United v. FEC (2004), the Supreme Court reversed much of what reformers had accomplished. In his dissent, Justice Stephens cited earlier Court decisions that recognized that corporate spending on elections should be viewed as a business transaction designed for no other purpose than profit-making. Corporations unfairly influence elections with vast sums of money that few individuals can match. Finally, Stephens pointed out that the mere appearance of impropriety fostered by Corporate campaign contributions would have a chilling affect on voter participation.

Stephens' arguments fell on deaf ears. The Court, as so often before, sided with corporations against the interests of ordinary citizens. One protection for We the People would be to limit the power of the Court by limiting its terms and making it easier to overrule their decisions with a national initiative. Critics of the Citizens United decision have proposed a Constitutional amendment to overturn it. A constitutional amendment would require majority votes of both houses of Congress and passage by three-fourths of the state legislatures. The amount of time, energy, and treasure necessary for the effort is enormous. This massive effort, involving millions of citizens, is required to counter the opinions of five Republican Justices. Nothing about our republic is less democratic than this proposition.

An amendment should be passed outlawing corporate spending in political elections. Laws should be instituted imposing heavy penalties for corporate officers who authorize anonymous spending from the corporate coffers.

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.¹

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.²

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

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1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), http://books.google.com/books?id=QEwTAAAAYAAJ&pg=PA16&lpg=PA16&dq=george+ashburn+murder&source=bl&ots=u4jYy1SKzI&sig=csGygOILiQ6j5e-RfFFGKQ-9Ha0&hl=en&sa=X&ei=_Hh9UcibCpTG4APiooDgCg&ved=0CHoQ6AEwCQ#v=onepage&q=george%20ashburn%20murder&f=false. Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.

2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877), http://openlibrary.org/books/OL22894692M.