Not your father's 14th Amendment

On August 19, two excellent, must-read articles ran on the Net that are sorely needed correctives to a common misunderstanding about the 14th Amendment.  Unfortunately, this mistake is made even by certain legal professionals who should know better.

Human Events ran “Fox News Anchored in Stupidity on 14th Amendment” by Ann Coulter.  Ms. Coulter explains the original intent, history, and case law surrounding so-called “birthright citizenship.”  Coulter makes a compelling case that the children born to illegal aliens on American soil were never intended to be granted automatic citizenship by the 1868 amendment:

The anchor baby scam was invented 30 years ago by a liberal zealot, Justice William Brennan, who slipped a footnote into a 1982 Supreme Court opinion announcing that the kids born to illegals on U.S. soil are citizens. Fox News is treating Brennan’s crayon scratchings on the Constitution as part of our precious national heritage.

(Is Brennan’s footnote an actual holding, or is it mere obiter dictum?)

One quibble: Coulter is a bit unfair to Gov. Chris Christie.  Christie actually told Greta van Susteren the other day that we need to look at the 14th Amendment “through a 21st-century lens, not through a 19th-century lens.”  I mentioned this in a blog last week, noting that Christie “delves into subjects other candidates seem afraid of, like the ‘birthright citizenship.’”  If you watch Christie’s Fox News segment, you can position the video at the 8:15 mark to hear him on the 14th.  (Of course, Coulter would say the problem isn’t the 14th Amendment; it’s that stupid footnote.)

The other must-read article appeared at National Review: “Trump’s Critics Are Wrong about the Fourteenth Amendment and Birthright Citizenship” by Edward J. Erler, a senior fellow at the Claremont Institute.  I’m not going to tell you everything that’s in these articles, as they should be carefully read in their entirety.  But I must quote Erler on the following point:

No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I believe, is eminently just. The proposal to end birthright citizenship is prospective only.

That “prospective only” point is important, as it should calm fears about revocation of citizenship already conferred.

Also on August 19 at Independent Sentinel was “Can Birthright Citizenship Be Overturned Without A Constitutional Amendment” by S. Noble, as well as a must-view segment on Fox News’s Hannity that featured Mark Levin (“The Great One” is always bracing).

Many conservatives are all up in arms about talk of repealing the 14th Amendment.  But as Ms. Coulter writes, clarifying the language in the citizenship clause wouldn’t require an amendment; it could be done by Congress with a simple law.  She cites the liberal Judge Richard Posner of the 7th Circuit Court of Appeals to back that up.  Erler makes the same point: “A constitutional amendment is no more required today than it was in 1923.”

Were one of Osama bin Laden’s pregnant wives to scramble across the border and give birth, her child would be an American citizen according to the current interpretation of the 14th Amendment.  Does that sound like a sovereign nation to you?

If we do not destroy the magnets to coming to America illegally, such as the current policy on “birthright citizenship” that spawned “anchor babies,” we’ll never get control over who gets to be an American.  If we destroy the magnets, we may not need to build a 2,000-mile wall.  If we don’t destroy the magnets, no wall will protect us.

Jon N. Hall is a programmer/analyst from Kansas City. 

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