Will Congress Act to Stop Birthright Citizenship?

The topic of discussion for this Constitution Monday concerns birthright citizenship. President-elect Donald Trump wants to stop the unrestricted birthright citizenship that many illegal immigrants use as a backdoor to gain citizenship for themselves.

On December 8, 2024, Trump was on NBC’s “Meet the Press” with Kristen Welker. Part of the wide-ranging interview addressed birthright citizenship. When Welker asked her question about the doctrine found in the Fourteenth Amendment, she left out six crucial words when reciting the amendment.

The first sentence of Section 1 of the Fourteenth Amendment states: “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.” Synonyms for jurisdiction include authority, control, power, dominion, rule, administration, command, and sovereignty.

Welker failed to recite the crucial six emphasized words stating that a person must be born on U.S. soil AND be subject to U.S. government. If a person comes into the U.S. illegally, they are NOT subject to the government of the United States. They are subject to the laws of Mexico or China or Russia or whatever country they left, not the United States.

Too many people have ignored the crucial words and subject to the jurisdiction thereof.

They also ignore the fact that the Fourteenth Amendment was written and became law because Democrats in the Southern States wanted to prevent African Americans – born in the United States – from becoming citizens. The ratification of the amendment had nothing to do with immigrant – legal or illegal.

Legal scholars claim that nothing can be done about the problem without another amendment to the Constitution. However, Senator Mike Lee (R-UT) disagrees. 

Nothing in the 14^th Amendment stops Congress from enacting legislation that limits birthright citizenship along the lines of what Harry Reid proposed in 1993.

Those words matter. [Those crucial six words.]

Congress has the power to define what it means to be born in the United States “and subject to the jurisdiction thereof.” Current law contains no such restriction, but Congress can make one, excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.

This is an idea that has attracted lawmakers of both political parties.

In fact, one of the first bills (at least in recent memory) that attempted to impose statutory limits on automatic birthright citizenship was introduced in 1993 by Senator Harry Reid (D-Nev.), who later became the Democrats’ leader in the Senate.

Senator Reid’s bill was called the Immigration Stabilization Act of 1993. Title X of that bill would have limited automatic birthright citizenship to children born in the United States to mothers who were either U.S. citizens or legal permanent residents at the time. The fact that federal law doesn’t currently impose such a restriction doesn’t mean that it couldn’t, and that’s why Reid proposed that change.

Nothing in the 14^th Amendment stops Congress from enacting legislation that limits birthright citizenship along the lines of what Reid proposed in 1993….

Moreover, the very lawmakers who drafted the 14^th Amendment did not consider it to confer automatic citizenship upon anyone born within its geographic borders – such a suggestion was considered absurd at the time.

Senator Jacob Howard, who served on the Joint Committee on Reconstruction that drafted the 14^th Amendment, said of the citizenship clause:

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Senator Lyman Trumbull, a staunch abolitionist who drafted the Civil Rights Act of 1866, which presaged the 14^th Amendment, also understood “subject to the jurisdiction thereof” to mean “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.

These policies were explicitly crafted to normalize the citizenship of newly freed slaves following the Civil War, and everyone at the time knew it….

How Do We Stop Automatic Birthright Citizenship for Illegal Alien Babies?

Politicians are finally on the same page as everyday Americans as to American birthright citizenship. Section I of the Fourteenth Amendment to the U.S. Constitution states: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

According to this site, the Fourteenth Amendment was written and ratified to solve a problem concerning former African American slaves, not people entering the United States illegally.

Following the Civil War, Congress submitted to the states three amendments as part of its Reconstruction program to guarantee equal civil and legal rights to Black citizens. A major provision of the 14 Amendment was to grant citizenship to “All persons born or naturalized in the United States,” thereby granting citizenship to formerly enslaved people.

Legislation has finally been put forward to change the thinking about what the Fourteen Amendment says. Obviously, Republican Rep. Matt Gaeta (R-Florida), sponsor of the bill, wants to push back against the prevailing idea that a baby born on U.S. soil automatically becomes an American citizen regardless of the citizenship status of its parent(s).

“Birthright citizenship has been grossly and blatantly misapplied for decades, recently becoming a loophole for illegal aliens to fraudulently abuse our immigration system. My legislation recognizes that American citizenship is a privilege – not an automatic right to be co-opted by illegal aliens” Gaetz said, according to a press release.

Alex Nitzberg at The Blaze emphasized that the Fourteenth Amendment is not the only document the specifies the requirements for becoming an American citizen. “The Immigration and Nationality Act likewise stipulates that “a person born in the United States, and subject to the jurisdiction thereof,” qualifies as an American citizen. 

According to Nitzberg, Gaetz is not attempting to amend the Fourteen Amendment. However, he does seek to amend the Immigration and Nationality Act by stipulating that “the term ‘subject to the jurisdiction thereof’ means, with respect to a person born in the United States, that the person was born to a parent who is, at the time of the person’s birth,” any of the following: “a national of the United States,” “a refugee,” “an alien lawfully admitted for permanent residence,” or “an alien performing active service in the armed forces.”

In addition to Gaetz, former President Donald Trump and Florida Governor Ron DeSantis have both indicated that they intend to act against the idea of automatic birthright citizenship for babies born to people who are in American illegally.

“We will take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States,” DeSantis’ website states.

“Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration. It is also inconsistent with the original understanding of 14^th Amendment, and we will force the courts and Congress to finally address this failed policy.”

Trump explained his avenue for acting against the automatic birthright citizenship concept. He “would sign an executive order informing ‘federal agencies that under the correct interpretation of the law … the future children of illegal aliens will not receive automatic U.S. citizenship.”

Truth Is Truth

                The topic of discussion for this Constitution Monday comes to us from Chad Kent about the Fourteenth Amendment to the Constitution of the United States.  Mr. Kent writes and speaks about the Constitution in such a way to make it “simple and fun.”  He had the audacity to state that it does not really matter what you or I think about illegal immigration because “it has absolutely no impact on the meaning of the 14^th Amendment.  Whether you love the idea of birthright citizenship for the children of illegal immigrants or you hate it – it doesn’t matter.

                “Truth is truth and the 14^th Amendment means what it means.  That’s what I intend to cover in this post.

                “With that out of the way, let’s take a look at the relevant part of the 14^th 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.’” (Emphasis mine)

                Mr. Kent explained the fact that belief by the “mainstream media and the political class in Washington, D.C.” does not make a truth.  They are “dead wrong” in their belief.   He then proceeded to give two reasons why they are wrong.  All persons must meet two requirements before they are guaranteed citizenship in the United States by our Constitution:  (1) “The person has to be born or naturalized in the United States AND” (2) “The person has to be subject to the jurisdiction thereof.”  Both conditions must be met in order for a person to be a citizen of the United States.

                Continuing his explanation, Mr. Kent asked a question:  “What did the framers of this amendment mean by `subject to the jurisdiction thereof’?”  He quoted two former Senators who helped to write the amendment.  Senator Lyman Trumball of Illinois:  “Not owing allegiance to anybody else.”  Senator Reverdy Johnson of Maryland:  “… not subject to some foreign Power.”

                Then Mr. Kent summarized:  “So in order to be guaranteed birthright citizenship a personal has to be born in the United States and owe no allegiance to any foreign country.  Obviously, people who come into this country illegally owe at least some allegiance to their home country – and so would their children.  Because of that, the children of illegal immigrants do not meet both of the requirements necessary to be guaranteed citizenship by our Constitution.”

                Mr. Kent quoted “one of the primary authors of this part of the 14^th Amendment”:  “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.  This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”  (Emphasis mine)

                Closing Mr. Kent stated:  “So according to one of the people responsible for writing this clause, it was not intended to give birthright citizenship to `foreigners’ or `aliens’ – and without question the children of illegal immigrants would be included in at least one of those categories.”

                I agree with the conclusion of Mr. Kent.  The Fourteenth Amendment does not guarantee United States citizenship simply because a person is born on United States soil or in United States air space or on the water surrounding the United States.  Any child born here must have at least one parent who is in the United States legally and subject to our laws in order to be considered a true citizen of the United States.  Those of us who understand this principle must continue to make it known; otherwise, our nation will be filled with residents who are “subject” to other nations and possibly willing to undermine our own.  We must declare the “truth” of the Fourteenth Amendment!

Birthright Citizenship

                The topic of discussion for this Constitution Monday comes from the first sentence of the first clause of the Fourteenth Amendment to the Constitution of the United States:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….”  Many people believe that this clause means that anyone born on United States soil is automatically a citizen of the United States.  If the authors of the Fourteenth Amendment wrote the amendment to give citizenship to everyone born in the United States no matter what other circumstances prevailed, they were setting up our nation for destruction by foreign countries. 

                Donald Trump is not my first choice for President of the United States, but he has done our nation a great favor by bringing birthright citizenship to the forefront of the dialogue of our country.  I believe that illegal immigration with all its problems including birthright citizenship is THE topic of discussion for the 2016 election.  Many people read the Fourteenth Amendment as it is written – and quoted above – while other people conveniently forget the phrase “and subject to the jurisdiction thereof.”

                Daniel Horowitz presents “The Originalist Case Against Birthright Citizenship.” “The American people are being told by the political class that there is nothing they can do to prevent future waves of illegal immigrants from coming here, unilaterally declaring political and legal jurisdiction, and securing citizenship for their children.  We are told that there is no recourse through our elected representatives to prevent illegal immigrants from gaining a legal foothold in this country all because of a footnote from the most radical anti-originalist justice of this century, William Brennan Jr.

                “If you are scratching your head wondering how our own Constitution can be used as a suicide pact against us by foreign countries, you are not missing anything.  This irrational sentiment expressed by a number of conservative and liberal pundits alike, in fact, undermines the very fabric of the social contract, popular sovereignty, and the republican form of government established by the preamble of the Declaration of Independence and the Constitution."

                Horowitz proceeds to explain in detail how people are getting the Fourteenth Amendment wrong.  He then concludes his article:  “Indeed, the issue of birthright citizenship for illegal immigrants is not just a tangential topic within immigration.  It cuts to the very core of how illegal immigrants are able to coerce their will on the American citizenry and the broader issue of sovereignty.  This runs much deeper than the 14^th Amendment.  The question for policy-makers has moved beyond whether we will survive as a nation as our Founder’s envisioned.  We have already deviated so far from that vision.  It’s a question of whether we are a nation at all.”

                Illegal aliens come into our country by breaking our immigration laws. They then have the nerve to march in protest to our laws.  Why are not the protesters rounded up and deported?  Why must American citizens endure all the problems brought by people coming to America illegally?  The answer to these questions and others is simply that our elected representatives are failing to do the job they were elected to do!

Power to Enforce

                The topic of discussion for this Constitution Monday comes from Section 5 of the Fourteenth Amendment to the Constitution of the United States:  “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”  This provision confirms that Congress has the right to pass the necessary laws to enforce the Fourteenth Amendment.

                W. Cleon Skousen explained, “Because the Fourteenth Amendment was poorly written, it has required more legislation and judicial proceedings than any other provision in the Constitution.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 727.)

                Roger Clegg of The Heritage Foundation further explained, “Following the pattern of the Necessary and Proper Clause of Article I, Section 8, the enforcement clause of the Fourteenth Amendment grants to Congress the power to pass legislation directed at effectuating the provisions of Sections 1 through 4 of the Amendment.  Like the enforce clauses of the two other reconstruction amendments (the Thirteenth and the Fifteenth), as well as those found in the Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth Amendments, Section 5 constitutes a delegated power granted to Congress in addition to those listed in Article I, Section 8, of the Constitution.

                “One specific purpose of the Fourteenth Amendment when it was passed in 1866 was to ensure that Congress had adequate power to adopt the Civil Rights Act of that year….  That act prohibited state legislation – specifically, the notorious `Black Codes’ – that denied black certain rights afforded to whites, including the power to make and enforce contracts.

                “A significant limitation in the text of Section 5 is that Congress is authorized only to `enforce, by appropriate legislation’ the provisions of the Fourteenth Amendment….”  (See The Heritage Guide to the Constitution, pp. 407-408.)

No Claims for Emancipated Slaves

                The topic of discussion for this Constitution Monday comes from Section 4 of the Fourteenth Amendment to the Constitution of the United States:  “… or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”  This provision means that no one could claim losses for the emancipation of their slaves or for losses fighting the emancipation of slaves.

                W. Cleon Skousen explained, “Prior to the war there had been a number of plans for the emancipation of the slaves through compensation to their owners, but these had been rejected.  Since the slaves had now been emancipated by force of arms as well as by law, no slave owner would be allowed to claim that he lost his slaves without due process and without compensation.”  (See The Making of America – the Substance and Meaning of the Constitution, p. 727.)

                Paul Moreno of The Heritage Foundation further explained, “…Although Section 4 `was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation [that embraces] whatever concerns the integrity of the public obligations.’  Gold Clause Cases.”  (See The Heritage Guide to the Constitution, p. 407.)

Debts for Fighting Against the Union

                The topic of discussion for this Constitution Monday comes from Section 4 of the Fourteenth Amendment to the Constitution of the United States:  “… But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States….”  This provision means that all claims for payment in fighting against the Union are unlawful and do not need to be paid.

                W. Cleon Skousen explained, “This section provides that all obligations, including the redemption of Confederation currency, were now null and void.  Anyone who had loaned money to the Confederacy could not now collect it.

                “Al such debts were illegal and void because they implemented the rebellion against the Union.  This wiped out a debt of $1.4 billion which the Confederacy owed to their own citizens, as well as to England, France, and other countries.  The Southern states also lost the value of their emancipated slaves.  At the same time the South had to shoulder its proportionate expense of the war incurred by the Union.”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 726-727.)

Rebellion Debt

                The topic of discussion for this Constitution Monday comes from Section 4 of the Fourteenth Amendment to the Constitution of the United States:  “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned….”  This statement means that anyone with a claim against the United States for expenses incurred fighting the rebellion of the South in the Civil War would receive payment without any questions asked.  This was probably because anyone objecting would be considered a rebel himself.

                According to Paul Moreno of The Heritage Foundation, this provision was “the least controversial of the sections of the Fourteenth Amendment, at least in the North….

                “In applying the section, federal courts held that no contracts involving Confederate bonds could be enforced and that `a court of the United States must hesitate to give them any recognition….

                “The issue of the repudiation of the United States debt again emerged when Congress took the United States off the gold standard, and some of the Gold Clause Cases (1935) involved United States bonds.  The Supreme Court did hold that Congress had exceeded its power under the Constitution in refusing to repay the bonds in gold, but it concluded that the bondholders had suffered only nominal damages and could not recover.  Although Section 4 `was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation [that embraces] whatever concerns the integrity of the public obligations.’  Gold Clause Cases.”  (See The Heritage Guide to the Constitution, pp. 406-407.)

No Offices for Rebels

                The topic of discussion for this Constitution Monday comes from Section 3 of the Fourteenth Amendment to the Constitution of the United States:  “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  But Congress may by a vote of two-thirds of each House, remove such disability.”

                This statement made it legal to exclude from any elected office or public appointment any former official who had pledged to uphold the U.S. Constitution and then taken part in a rebellion against the United States.  This provision was apparently written specifically against those men who had fought against the Union in the Civil War.

                W. Cleon Skousen explained, “It is obvious from this provision that the radical leadership of the Congress which wrote the Fourteenth Amendment had very little of the spirit of healing and reconciliation exhibited by Lincoln or even by General Grant when Lee surrendered.  As a result, the South was deprived of its experienced, traditional, and most responsible leadership.  Except for the issue of slavery, some of this leadership provided the nation with some of its best elements of political wisdom prior to the war.

                “The Fourteenth Amendment was ratified on July 9, 1868, and on Christmas Day of the same year, President Andrew Johnson wiped out the effects of this vindictive provision by exercising his pardoning powers.  He issued a proclamation of full amnesty, granting `unconditionally and without reservation’ to all who had been engaged in the Southern cause, a `full pardon.’”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 725-726.)

                Paul Moreno offered further explanation about this “disqualification of former rebels for federal and state office.”  He said it “was the most controversial of the sections of the Fourteenth Amendment.  It appeared to be vindictive and to intrude on the President’s pardon power.  It certainly made the ratification of new state constitutions in the South less likely – and some Congressmen believed that this was a deliberate stratagem to keep the Southern states out of the Union until after the 1868 election.  An original draft of the section would have disqualified all who had voluntarily aided the Confederacy until 1870, but the Senate adopted Senator Jacob Howard’s less severe but potentially more permanent version.  Congress lifted the disqualification of many individuals, and in 1872 it did so for all but Members of the Thirty-seventh (1861-1863) and Thirty-eighth Congresses (1863-1865), federal judicial and military officers, heads of departments, and foreign ministers.  In 1898, Congress removed all disqualifications for previous disloyal conduct.  Despite being written in a particular historical context, the clause is still in operation and would apply in the case of future insurrections or rebellion.”  (See The Heritage Guide to the Constitution, p. 406.)

Voting Rights

                The topic for this Constitution Monday comes from Second 2 of the Fourteenth Amendment to the Constitution of the United States:  “Representatives shall be apportioned among the several States according to their respective number, counting the whole number of persons in each State….  But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States….”  This provision gives each state the right to have all qualified voters in other states granted the privilege to vote.  The punishment to a state for violating this provision was a reduction in representation in Congress.

                W. Cleon Skousen explained, “This was a penalty clause designed to punish those states that might try to somehow prevent the former slaves from voting.  As many authorities have pointed out, the Fourteenth Amendment – the longest of all the amendments – was poorly written, and composed in a spirit of anger and revenge rather than the careful, calculated calmness of the mature legislator.  As it turned out, this provision was an impractical procedure and was never utilized.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 725.)

                Paul Moreno of The Heritage Foundation explained, “In his speech of April 11, 1865, President Abraham Lincoln described the Southern states that had rebelled in the Civil War as being `out of their proper practical relation with the Union.’  In setting the terms for the readmission of those states to the Union, the Reconstruction Congress had to deal with several issues in addition to that of the status of the freedmen:  representation in Congress, the political status of high-ranking rebels, and the debts of the United States and Confederate States.

                “The abolition of slavery increased the political power of the former slave states in the House of Representatives.  Under the Three-fifths Clause of the original Constitution (Article I, Section 2, Clause 3), five slaves had counted as three persons; now they would be counted as five persons, though none of the Southern states would have permitted them to vote.  Section 2 was a major concern in the South.  Paper after paper carried charts showing its impact on Southern representation in Congress.  The framers of the Fourteenth Amendment intended Section 2 to encourage the Southern states to enfranchise blacks, without directly compelling them to do so – for very few Northern states allowed blacks to vote.  Democrats condemned any congressional interference in the traditionally state-controlled matter of voting, and radical Republicans objected to the implicit approval of racial qualifications for voting.  Section 2 was, therefore, a compromise position acceptable to the moderate Republicans who held the balance of power in Congress….”  (See The Heritage Guide to the Constitution, pp. 404-405.)

Indians Not Included

                The topic of discussion for this Constitution Monday comes from the Second Section of the Fourteenth Amendment to the Constitution of the United States:  “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed….”  This provision gave Indians the right to remain members of their sovereign tribes and nations unless they were paying taxes and wanted to vote.

                W. Cleon Skousen explained, “The Indians always insisted that they were independent nationalities and the United States government therefore made treaties with them as though they were foreign nations.

                “In a short time, however, it became obvious that the Indian culture was part of the American culture, and that the native Indian population should no longer be treated as outsiders.   In 1924 the Congress therefore passed an act making the Indians living on the reservations full-fledged citizens, entitled to all of the privileges and responsibilities of citizenship.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 724.)

Representatives Apportioned Among States

                The topic of discussion for this Constitution Monday comes from the Fourteenth Amendment to the Constitution of the United States:  “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State….”  Each state had the right to have all persons living within its boundaries to be counted in the census.

                W. Cleon Skousen explained, “This provision was designed to eliminate the previous arrangement of counting slaves as here-fifths of a vote.  This had not been done as a demeaning gesture against slaves but simply as a compromise over the issue of taxes and representation.  The South wanted to count all slaves in calculating he population for the purpose of determining the number of representatives in the House, but it did not want to count the slaves at all in apportioning taxes `according to population.’  It was finally agreed that slaves would be counted as three-fifths of a vote for both representation and taxation.  The Fourteenth Amendment eliminated this practice.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 724.)

                Paul Moreno of The Heritage Foundation explained, “In his speech of April 11, 1865, President Abraham Lincoln described the Southern states that had rebelled in the Civil War as being `out of their proper practical relation with the Union.’  In setting the terms for the readmission of those states to the Union, the Reconstruction Congress had to deal with several issues in addition to that of the status of the freedmen:  representation in Congress, the political status of high-ranking rebels, and the debts of the United States and Confederate States.

                “The abolition of slavery increased the political power of the former slave states in the House of Representatives.  Under the Three-fifths Clause of the original Constitution (Article I, Section 2, Clause 3), five slaves had counted as three persons; now they would be counted as five persons, though none of the Southern states would have permitted them to vote….”  (See The Heritage Guide to the Constitution, pp. 404-405.)

Equal Protection of Laws

                The topic of discussion for this Constitution Monday comes from the Fourteenth Amendment to the Constitution of the United States:  “… nor deny to any person within its jurisdiction the equal protection of the laws.”  This provision states that every person – both citizen and non-citizen - living within the United States is entitled to the equal protection of the law.

                W. Cleon Skousen explained, “It is impossible to provide equal protection against the violation of the law, but once a law becomes operative as a result of a crime or a tort, the law should be equally administered regardless of race, sex, religion, citizenship, or national origin.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 723.)

                David Smolen of The Heritage Foundation explained, “The Equal Protection Clause is one of the most litigated and significant provisions in contemporary constitutional law.  The meaning of the clause is bound up with the entire drama of the Civil War and Reconstruction and, in particular, with slavery and emancipation.  Thus the Equal Protection Clause can be understood only as an organic part of the Fourteenth Amendment and in the broader context of all the Reconstruction amendments.”  (See The Heritage Guide to the Constitution, pp. 398-399.)

Without Due Process

                The topic of discussion for this Constitution Monday comes from the Fourteenth Amendment to the Constitution of the United States:  “…nor shall any State deprive any person of life, liberty, or property, without due process of law….”  Every person living within the United States – citizen and non-citizen – has the right to the protection of their life, liberty, and property and to know that none of them can be taken away without due process of law. 

                W. Cleon Skousen explained, “One again, this provision is simply a repletion of what was already guaranteed in the Fifth Amendment:  `No person shall be … deprived of life, liberty, or property, without due process of law.’

                “`Due process’ means a full hearing as provided by law.  Due process does not necessarily require a jury unless that is the established process for the type of problem involved.  Nor is a formal trial necessary for due process, if there is a full and fair hearing and an opportunity for the determination of the merits of the case.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 273.)

                James W. Ely, Jr. of The Heritage Foundation explained, “Both the Fifth Amendment and the Fourteenth Amendment to the United States Constitution prohibit governmental deprivations of `life, liberty, or property, without due process of law.’  The Due Process Clause of the Fourteenth Amendment serves three distinct functions in modern constitutional doctrine:  `First, it incorporates [against the States] specific protections defined in the Bill of Rights …. Second, it contains a substantive component, sometimes referred to as `substantive due process.’ …

Daniels v. Williams (1986) (Stevens, J., concurring)

                “Modern law interprets the Fifth and Fourteenth Amendments to impose the same substantive due process and procedural due process requirements on the federal and state governments….”  (See The Heritage Guide to the Constitution, p. 394.)

No Abridging of Privileges or Immunities

                The topic of discussion for this Constitution Monday comes from the Fourteenth Amendment to the Constitution of the United States:  “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”  This provision simply states that all citizens of the United States have the right to enjoy the privileges and protections of citizenship.

                W. Cleon Skousen explained, “It will be observed that this merely repeats what the Constitution had already stated in Article IV, section 2:  `The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’

                “In both instances the Constitution refers only to the privileges and immunities belonging to a person as a citizen of the United States.  It does not prohibit the states form altering, regulating, or restricting privileges and immunities related to state citizenship.

                “Examples of privileges and immunities on the state level would be such things as working hours, labor laws affecting women and children, size of a jury, voting in city, county, or state election, and so forth."  (See The Making of America – The Substance and Meaning of the Constitution, p. 722.)

                Patrick Kelly of The Heritage Foundation explained, “The historical context of the adoption of the Fourteenth Amendment would have been known to the contemporary members of the amendment’s intended audience and would no doubt have influenced greatly their understanding of its meaning.  Congress drafted the Fourteenth Amendment and sent it to the states for approval in 1866, after the required supermajority of Congress had voted to overturn President Andrew Johnson’s veto of the Civil Rights Act of 1866.  In his veto message, President Johnson had questioned the constitutionality of that act.  Sections 1 and 5 of the Fourteenth Amendment together were obviously intended to provide a solid constitutional base for the act, and Section 1 was intended to embed the essential proscriptions of the act in the Constitution itself, safe form subsequent repeal by mere legislative action.  Congress had drafted the act to overturn the effects of the infamous `Black Codes’ enacted by the reconstituted Southern state governments on 1865 and 1866 under President Johnson’s Reconstruction policies.  Those codes limited in important ways the basic civil rights of the freed slaves to contract, to own property, and to sue….”  (See The Heritage Guide to the Constitution, pp. 386-387.)            

Citizens of the USA

                The topic of discussion for this Constitution Monday comes from the Fourteenth Amendment to the Constitution of the United States:  “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….”  This provision states that any person born in the United States or naturalized in the United States are citizens of both the United States and the state where they reside.

                W. Cleon Skousen explained this provision:  “The only exceptions are children born to foreign diplomats and children born to enemies during wartime occupation.

                “It is interesting that in spite of this amendment, American Indians living on reservations could not be citizens or have their children considered citizens until 1924.

                “This amendment was found to be necessary because in spite of the Thirteenth Amendment, which was ratified December 6, 1865, there continued to be a number of abuses of former slaves….

                “It was because of the serious abuses of civil rights among some of the states that a number of civil rights bills were launched – beginning 1963 – and these rapidly transferred a great deal of jurisdiction from the states to the federal courts.  This had been avoided in the past because many felt it would give the federal courts so much power that they might become abusive themselves.  Furthermore, many authorities expressed particular apprehension because the new laws would give the federal courts enforcement power over individuals as well as public and private institutions.  Nevertheless, Congress passed the laws hoping the courts would exercise restraint.”  (See The Making of America – The Substance and Meaning of the Constitution, pp. 721-722.)

                Edward Erler of The Heritage Foundation explained:  “Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States.  In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States.  The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves.  The Fourteenth Amendment made United States citizenship primary and state citizenship derivative.  The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship.  States could no longer prevent any black from United States citizenship or from state citizenship either.”  (See The Heritage Guide to the Constitution, p. 384).

                I personally believe that we will have to do something about the wording in the Fourteenth Amendment in order to stop illegal aliens from coming to the United States to have their “anchor babies.”  I believe that wording such as the following may have to be included in an amendment:  No children or posterity of persons in the United States of America illegally can ever become citizens of the United States without returning to their country of origin and making application to be admitted to the United States legally and lawfully.  I also believe that we will have to do something about the people who are already here illegally but hope we can do it without bestowing amnesty or citizenship upon them.

Dred Scott Decision

The United States Supreme Court ruling known as the Dred Scott Decision was made in 1857 and was morally wrong. It is important for all mankind to understand what happened in this case and why it was a bad decision. The ruling declared that no black person - free or slave - could claim citizenship in the United States. The decision also declared that slavery could not be prohibited in the United States Territories. This ruling moved the United States one step closer to civil war because it caused angry resentment among Northerners. This decision also had great influence on the introduction and passage of the Fourteenth Amendment to the United States Constitution. This amendment was adopted in 1868, extended citizenship to former slaves, and gave them full civil rights. A little background information on the case may be helpful to you. Dred Scott was a slave who belonged to John Emerson of Missouri, a state where slavery was legal. Emerson, a United States Army surgeon moved in 1834 to Illinois, a state where slavery was illegal. They later moved to the Wisconsin Territory where the Missouri Compromise prohibited slavery. Emerson returned to Missouri in 1838 and died there in 1843. Scott sued three years later to obtain his freedom from Emerson's widow. The Dred Scott case was based on the argument that he was a free man because he had lived in a free state (Illinois) and a free territory (Wisconsin). A decision by the state circuit court was for Scott. This decision was later reversed by the Missouri Supreme Court. In the meantime, John F. A. Sanford became Scott's legal owner. The case was moved into a federal court because Sanford did not live in Missouri. This court ruled against Scott, but the case went to the United States Supreme Court. The Supreme Court ruled with a majority of 7 to 2 that Scott could not bring a suit to federal courts because he was black and blacks were not citizens of the United States. The Missouri Compromise was discussed as part of the Dred Scott case because there was a growing desire in the nation to know if it was constitutional even though it had been repealed in 1854. The Supreme Court decided by a smaller majority that the Missouri Compromise was unconstitutional. Chief Justice Roger B. Taney spoke for the majority in explaining that blacks could not claim United States citizenship. He also argued that slaves were property and that Congress would violate a slave owner's constitutional right to own property by forbidding slavery in the territories. Shortly after his case was heard by the Supreme Court, Dred Scott was sold. His new owner set him free two months after the decision. Slavery is morally wrong. It is an evil practice that deprives human beings of the divine right of agency. The Dred Scott decision was especially evil because it used the rule of law to keep a human being in slavery. I am grateful that there was a majority of morally correct people in our nation who forced an end to the practice of slavery. Facts for this post came from an article by Stanley I. Kutler in World Book Encyclopedia, Vol. 5, p 345.