Mr. Dan Grech
WLRN Miami Herald News Director
Dear Mr. Grech,
I am a law professor at the University of Miami. I am writing to express my concern about something I heard on WLRN this morning during the Miami Herald News segment. The segment concerned the discussion held yesterday in the Miami Herald editorial offices between competing candidates for Congress in FL-22. (I was in my car, but I believe it ran shortly after 7:30am. I can't find it online.)
In the discussion of the candidates' differences over immigration, Allen West's position was described as “hardline”; his position was that babies born in the US should not have citizenship. Whatever the merits of this idea as social policy (the so-called 'anchor babies' to which he referred have been shown to be pretty much mythical) it does listeners, most of whom are not professors of constitutional law, a great disservice to call this a “hardline” position. It is not a matter of policy that could be changed by Congress or the Executive. It is, quite simply, part of the 14th Amendment to the Constitution.
Either the candidate is proposing that we ignore the Constitution as it has been understood for generations, or he is proposing that we repeal the 14th Amendment. Proposals to violate the law, or to amend basic rules that have served us for generations, may be called many things — I'd call them “radical” — but they cannot fairly be called “hardline” without substantially more context than your report offered.
We might call differences on how aggressively to attempt to enforce immigration laws — e.g. what resources to devote to factory or farm-worker raids — as an issue to which the “spend more on enforcement” position is fairly abbreviated as “hardline”. But the “ignore the Constitution” or the “repeal the 14th Amendment” positions are something else entirely, something I hope your future reports — even the very short ones — will make more clear.
Yours Sincerely,
A. Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Considering that there’s quite a bit more to the 14th amendment than just jus soli citizenship, one would hardly have to repeal the entire thing to end that policy.
In fact, I’d go so far as to say that compared to some ‘interpretations’ that are considered routine, (Commerce clause interpretation, for instance.) interpreting the phrase, “subject to the jurisdiction thereof” to mean here legally is scarcely any stretch at all.
I might go so far as to point out that the relevant clause’s author said,
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
In short, the need for an amendment is not nearly so clear as you’re making it out to be.
The first sentence of the 14th Amendment reads, “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.”
The idea that those foreign ambassadors who have diplomatic immunity and thus are NOT “subject to the jurisdiction” of the US or the several states are not covered by this clause fits neatly and requires no strange interpretation. But it’s long been understood that everyone else is covered. These understandings are consistent with the quote you provide above.
To interpret “subject to the jurisdiction thereof” to exclude undocumented aliens would be to say we couldn’t try them for crimes, or indeed subject them to any legal process other than deportation. I don’t think anyone wants that, do you?
A very nice discussion of the history of the 14th Amendment which does a good job of showing (among other things) that the “subject to the jurisdiction” clause has always had more or less the interpretation now given to it can be found here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675876
I’m not an originalist and don’t think this sort of stuff is decisive as to how we should interpret the constitution, but it’s interesting and a useful analysis, and shows quite clearly that the proposed changes really would be radical ones. I show what’s wrong with the idea that citizenship is based on “consent” in any sense that rules out jus soli in my paper here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586979
I’m not saying that it’s a good originalist interpretation of that clause of the 14th amendment. I’m saying that FAR NUTTIER interpretations of constitutional clauses are quite common in today’s constitutional law, so it’s not as much of a stretch as he’s making it out to be. If the legislative and executive branches got together and agreed to interpret “subject to the jurisdiction” in this way, I sure wouldn’t bet good money that the Supreme court would slap them down.
Of course it wouldn’t be a misinterpretation of the Constitution to believe that it authorizes particularized assassination of an American citizen without trial (so far as we know) and without disclosure of the evidence against him (as if that would make it OK). That wouldn’t be a “far nuttier” understanding of Constitutional limitations now would it? Of course not, only people not on the elite approval list can be advocating acting unconstitutionally. (And of course a secretive, unconstitutional, extrajudicial killing of an American citizen by his approved-by-the-elite government is far less offensive than burning a Koran or something.)
http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html?_r=1
Think about THAT while you worry about whether the Customs official at the airport might be trying to cleverly trick you into revealing you went on business, rather than pleasure…
I agree with the Professor on the merits of this one, i.e., about the interpretation of the Fourteenth Amendment. That said, I must confess I don’t quite understand his beef with the description “hardline.” Or, more specifically, that he’d actually write a letter to the editor about its use. If one were to write such a letter for every editorial mishap, one would be writing many letters indeed.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States Juicy Couture and of the State wherein they reside.