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The Whole Constitution — Without Holes

Deborah J. Vagins,
ACLU Washington Legislative Office
Joanne Lin,
Senior Legislative Counsel,
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January 14, 2011

Clashing perceptions of our Constitution last week led to dissonant messages about the importance of defending our founding charter. The new 112th Congress kicked off the session with a reading of the document in the House of Representatives, a laudable expression of fidelity to first principles of American law and government. Describing the impetus behind the House’s homage, Speaker John Boehner said that a core theme of his tenure will be “respecting the Constitution.” We commend showing respect for the Constitution and hope that both parties will work to uphold the whole document.

What an unpleasant surprise, then, that the day before the new House celebrated our Constitution there were two assaults launched on a signal constitutional achievement: the 14th Amendment. The ACLU has strongly rejected both proposals.

First, a handful of state legislators held a national press conference last week at which they made clear that they wish to abolish the constitutional citizenship guaranteed by the words of the 14th Amendment: “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 ACLU urged rejection of this dangerous state proposal.

After the Civil War, the 14th Amendment was meant to help mend a violent tear in the fabric of our country by putting citizenship above the politics and prejudices of any given era. The amendment’s intent, repeatedly recognized by the Supreme Court, was to guarantee equal citizenship for all children born on U.S. soil (except children born to diplomats or invading soldiers), regardless of the status of their parents. It overturned one of the Supreme Court’s most infamous rulings, Dred Scott v. Sanford, which held in 1857 that neither freed slaves nor their descendants could ever become U.S. citizens. And later, in 1898, the Supreme Court in U.S. v. Wong Kim Ark upheld the U.S. citizenship of children born here to Chinese migrant workers who were excluded from citizenship themselves.

Second, on the same day, Rep. Steve King (R-Iowa) introduced a bill that poked holes in efforts to respect the Constitution. The King bill would amend the immigration laws so that birth on U.S. soil would no longer guarantee citizenship. Under this legislation, only children born to at least one U.S. citizen or lawful permanent resident parent would be granted citizenship at birth (with an exception for parents on active service in the armed forces). The ACLU urged the House to reject Rep. King’s bill aimed at subverting constitutional citizenship.

Rep. King has claimed that ending birthright citizenship through statute makes sense because it is “easier to do” than changing the 14th Amendment. However, it is a well-established principle of American law that the Constitution can only be altered through amendment, not by simple legislation. But even more than that, fidelity to American constitutional principles is inconsistent with this attempt to undermine the very guarantee of equality that is enshrined in the 14th Amendment.

Many prominent conservative leaders have criticized attempts to tamper with the 14th Amendment, including Alan Keyes, Carly Fiorina, Meg Whitman, Mike Huckabee, Sen. Marco Rubio (R-Fla.), Alberto Gonzales, Linda Chavez, Cesar Conda, Mark McKinnon, and Michael Gerson. Asked about his position on changing the 14th Amendment’s citizenship clause, Lou Dobbs said: “Absolutely not. I’m one of those who is very, very reserved when it comes to the idea of changing the Constitution for any reason whatsoever. . . . To tamper with the Constitution and to take away constitutional rights . . . I object to it.” In former Texas Solicitor General James Ho’s view, attackers of the guarantee of constitutional citizenship “cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.”

Most recently, national civil and human rights organizations and legal scholars have joined to form a new coalition, Americans for Constitutional Citizenship, to defend the 14th Amendment. Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, emphasized that “[f]or the first time since the end of the Civil War, these legislators . . . would create two tiers of citizens – a modern-day caste system – with potentially millions of natural-born Americans being treated as somehow less than entitled to the equal protection of the laws that our nation has struggled so hard to guarantee.”

Here’s hoping that the House of Representatives’ commitment to the Constitution resonates with Rep. King and the state legislators, whose proposals do not respect our Constitution, but tear holes in its fabric and the values it so eloquently expresses.

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