Mark Davis: What the 14th Amendment really says

What the 14th Amendment really says


Mark Davis
Tuesday, August 17, 2010

One of the first steps of debate avoidance is a certain smug arrogance that says, "You silly people, this is already settled. Why don't you run along and stop annoying us?"

This tactic worked for a while for members of the Church of Man-Made Global Warming. Now we hear it from those who don't want to be bothered with a serious discussion about birthright citizenship.

Well, they can participate or get out of the way, because here it comes, sparked by the question of whether the Constitution guarantees American citizenship to anyone who happens to be born in the U.S. under any circumstance.

The status quo says yes. The most rudimentary logic says no.

As soon as the 13th Amendment abolished slavery in 1865, some states responded with laws reasserting a lesser status for newly freed slaves. The very next amendment, adopted less than three years later, contained language meant to protect them from such mischief by codifying their full citizenship rights.

The language chosen then did not say "all persons born in the United States shall be Citizens of the United States." There was a qualifier of six words – "and subject to the jurisdiction thereof" – that certainly applied to the slaves but may not necessarily apply to a baby born to a woman who sets foot on American soil as her labor begins.

Some court cases have explored the 14th Amendment's citizenship clause, but this issue is not settled. U.S. vs. Wong Kim Ark (1898) asserted citizenship rights for a man born in the U.S. to parents who were not citizens at the time but were legal residents.

In his dissent, Chief Justice Melville Fuller foresaw the further lowering of the citizenship bar, warning against granting such precious rights to "the children of foreigners, happening to be born to them while passing through the country."

Another straw grasped by birthright citizenship defenders is 1982's Plyler vs. Doe, which negated Texas' right to deny funding to children of illegal immigrants. The 5-4 majority relied on the same specious "discrimination" argument that poisons the current debate over Proposition 8 in California, another case in which sympathy for the parties involved is substituted for objective judgment of their rights.

But flawed or not, Plyler stands up for education dollars for the children of illegals, not their automatic right to full citizenship.

There is simply no reason to automatically conclude that we would need a constitutional amendment to rescind birthright citizenship. Yet that has been the presumption, leading to mocking those who would be willing to try.

Derided as xenophobic Don Quixotes tilting at anchor-baby windmills, those willing to amend the Constitution to end birthright citizenship are taunted with reminders of how hard it is to change our nation's founding document, along with the usual false assertions of racist motive.

Some Republican knees naturally turn to jelly, in view of Hispanic voters' unfortunate tendency to dislike politicians standing up for strong immigration laws. This creates weasel positions like "Let's not get everybody all upset with this birthright citizenship talk; let's focus on border enforcement instead."

Well, here's a crazy idea: Let's do both. Those who go weak at any whisper of serious deportation are fond of reminding us that we should crack down on employers who hire illegals to minimize the appeal of swarming northward.

They are completely correct. Sensible immigration law involves not just ambitious border patrols but putting a stop to the things we do that are magnets for illegals.

The instant – and absurd – promise of instant citizenship without even one legal resident parent is as strong an enticement as American jobs and welfare. We should all welcome a principled debate over whether fixing this problem requires changing the Constitution or merely following it.

Mark Davis is heard weekdays from 8:30 to 11 a.m. on WBAP News/Talk 820 AM and 96.7 FM in Dallas/Ft. Worth