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The **Fourteenth Amendment** (**Amendment XIV**) to the [|United States Constitution] was adopted on July 9, 1868 as one of the [|Reconstruction Amendments]. Its [|Citizenship Clause] provides a broad definition of citizenship that overruled the decision in //[|Dred Scott v. Sandford]// (1857), which held that blacks could not be citizens of the United States. Its [|Due Process Clause] prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the [|Bill of Rights] [|applicable to the states], as well as to recognize [|substantive] and [|procedural] rights. Its [|Equal Protection Clause] requires each state to provide equal protection under the law to all people within its [|jurisdiction]. This clause was the basis for //[|Brown v. Board of Education]// (1954), the Supreme Court decision which precipitated the dismantling of [|racial segregation in the United States]. The amendment also includes a number of clauses dealing with the [|Confederacy] and its officials.

remember that birthright citizenship was around long before the 14th Amendment. It came from the English Imperial days, starting around 1608 and the desire of the Empire for those born within the realm to be subjects of the Crown. The concept carried over to the United States. The 14th Amendment enters the picture after the Civil War. It contains this language: “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

According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism. On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status. No data has been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.” Therefore, Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.” This country needs immigration reform. However, changing the Constitution to reflect the racial tensions of the day is an inappropriate solution and demeans the values that this country was founded on. As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases. The question is how this new debate will affect the coming midterm elections. Republicans are gambling on gaining enough conservative votes over immigration concerns to support them in November. Often, emotions draw voters to the polls, and this new attack on the 14th Amendment may either gather support from upset conservatives or cause victimized Latinos to shun the Republican Party. Ultimately, this new push is an attempt to garner Republican support in a changing America, as Sam Fulwood III of the Center for American Progress notes: > “Taken at their word, [Conservative Republicans are] concerned that America’s way of life is being threatened as immigrants overwhelm the ability of native citizens to govern and pay for social services. I don’t believe that. I think it’s a fear of the browning of America and a threat to the Republican Party to project itself as a political retreat for conservative, white and male authority over national events. Demographers estimate that by 2050, the nation will no longer have a majority white population with roughly 25 percent of the population Latino, 13 percent African American and another 13-15 percent Asian American. That would leave generously some 45-48 percent of the population defined as non-Hispanic white. Such dramatic demographic change means that politics must change to accommodate the newly emerging voices from people of color. Conservative Republicans seem, as things are going now, likely to lose out on garnering support among these new Americans. My supposition is that by limiting the number of immigrants, the conservative Republicans hope to forestall the browning of America.” > Thus as the demographics of this country change rapidly, political actions become more and more drastic. Politicians aim at catering to those most likely to vote, which helps explain this new strategy based on attacking the 14th Amendment. Immigration is a heated issue, and surprisingly, in a June 2010 poll by Rasmussen Reports, 58% of Americans surveyed stated that a child born to an illegal immigrant should not automatically become a U.S. citizen. Thus, while any follow-up action regarding birthright citizenship is unlikely, conservatives may be able to ride through the polls by eliciting an emotional response from the American public regarding immigration. Julia Preston explains this new trend in right-wing politics by citing Sen. Lindsey Graham’s radical change in agenda, stating, “Graham [is a] conservative from a conservative state.” Thus it seems that as politicians cater to party aims, bipartisanship, especially on issues such as immigration, has a dismal future. What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society.
 * What This Means for the Immigration Debate**
 * What This Means for the Future**

Among the most politically charged issues before American citizens is whether we must accept tens of millions of illegal migrants within our sovereign borders and extend citizenship to the offspring of transient aliens who give birth to anchor babies whose allegiance to the U.S. is seen as unrelated to that of the lawbreaking parents by some. Their manipulation of our medical system to gain government recognition and assistance for the illegal migrants’ bloodlines, thereafter, has been a significant contributor to more than a hundred hospitals across the southwest having been forced to close since the mid-90’s. With estimates ranging from nearly 400,000 births to more than a half million annually to mothers who have no legal standing or recognition of any kind before our federal government, the current practice of assigning “birthright citizenship” is contentious, to say the least, and remarkably different from what was intended when Senator Jacob Howard and members of the Joint Committee on Reconstruction brought recommendations for the 14th Amendment before the Senate for discussion and debate.

As principal author of the Citizenship Clause, Senator Howard, attempted to address not only the post Civil-War issue of citizenship and rights for slaves in the 14th Amendment, but included wording meant to withhold assignment of comparable rights to offspring of non-citizens given birth on U.S. soil. In 1866, Sen. Howard clearly spelled out the intent of the 14th Amendment by stating:

"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 ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

A respondent to an earlier question about the Amendment’s scope and intent suggested reading words from discussion in the Chamber when Senator Howard brought the Committee’s recommendation for the first of five sections before the Senate body. The initial link below presents readers with an opportunity to view a critical page of the Congressional Globe from the National Archives for what was meant by the Committee’s wording. Near the bottom of the middle column, the Senator’s explanation for the Clause, specifically with regard to the critically important “subject to the jurisdiction thereof” phrase, was recorded thusly: “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 State, but will include every other class of persons.”

What was presented before the body was reaffirmed by Senator Edward Cowan, who stated:

"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."

The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

Since the original intent and correct interpretation of the 14th Amendment's Citizenship Clause specifies that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby, birthright citizenship appears to have come from imaginative Court rulings that reverted back to English common law rather than the Amendment’s wording or the Authors’ intent. Several Supreme Court rulings during the latter part of the nineteenth century confirmed and supported the original restrictive interpretation of citizenship through the so-called "Slaughter-House cases" [83 US 36 (1873) and 112 US 94 (1884)]13. The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.

Would you prefer to have the 14th Amendment’s Citizenship Clause applied in accordance with how it was explained by Senator Howard during May, 1866 in his presentation to the Senate body, or do you prefer the older English common law

The 14th amendment to the Constitution provides each baby with a United States citizenship at birth if he is born on the territory of America, even though the parents remained undocumented. This is the reason for which some Republican lawmakers want to revise birth right citizenship, so that the children of illegal immigrants would not immediately receive a citizenship. The Pew Hispanic Center estimates that 340,000 babies of the 4.3 million born in the United States hospitals in 2008 belonged to illegal immigrant parents, and this makes a total of 4 million citizen currently living in the country and which have illegal immigrant parents. This is the first reliable estimation of annual United States births to illegal immigrants, and ads fire on the already hot debate over the children of illegal immigrants.

There are a lot of critics of the birth right citizenship, which have expressed their worries regarding the fact that the children of the 10.8 million illegal immigrants will receive citizenship and thus will be able to sponsor their parents and relatives for legal residency. Republican Senator Lindsey Graham of South Carolina says that the 14th amendment should be canceled and the Constitution should be changed, so that if a couple of illegal immigrants has a baby, then their child is an illegal immigrant too. The Senate Minority Leader Mitch McConnell, together with some other Republicans like Arizona senators Jon Kyl and John McCain are considering the 14th Amendment issue raised by her, but declare themselves reluctant to changing the constitution. This would require some congressional hearings, because, after all, the Constitution has successfully ruled America for centuries by now and the decision of amending it has to be taken with extensive and thoughtful consideration. Some of the lawmakers say that the 14th Amendment business is nothing but a political stunt, raised three months before the elections. Arlen Specter, the Pennsylvannia Democratic Senator whose parents were immigrants to the United States says that citizenship by birth a fundamental right and that using newborn children that can not protect themselves with the purpose of gaining political power is preposterous. The 14th Amendment to the Constitution appeared after the Civil War so that the descendants of slaves received United States citizenship. “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”. George Washington University constitutional law professor Jonathan Turley said that the draft of the 14th Amendment mentioned that it is not referring to foreigners or aliens, but the courts have repeatedly ruled that people who are born in the United States are American citizens. The Supreme Court only dealt once with this matter, in 1898, and ruled that citizenship by birth only applies to United States born children of legal immigrants who have yet to become citizens. The United States is one of the few remaining countries that still grants citizenship to all children born on its grounds. Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC), in a surprisingly radical move on his part, appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves.
 * Council On Hemispheric Affairs**

Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a staunch Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution.

Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship).

“Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8% of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.”

The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states that “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 clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected.
 * The 14th Amendment**

Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act.

Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.”

Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed. Thus, as Roberto Suro, a communications and journalism professor at University of Southern California, has stated, “It is a hell of a lot of deferred gratification at best.” The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status.
 * “Anchor Babies”**

The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Roberto Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants.

Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.”

On April 14th, 2010, an ABC article raised the issue of “birth tourism,” a trend in which wealthy foreigners come to have children in special American-based resorts so that their children will gain American citizenship. The article questions the legitimacy of the 14th Amendment in light of these trends, but has received criticism due to its misrepresentation of certain facts. Birth tourism made up about two-tenths of 1% of all births in 2006. Furthermore, these affluent non-natives have little in common with the undocumented immigrants primarily targeted by attacks on the 14th Amendment. As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life.

According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism. On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status. No data has been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.”

Therefore, Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.”

This country needs immigration reform. However, changing the Constitution to reflect the racial tensions of the day is an inappropriate solution and demeans the values that this country was founded on. As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases.
 * What This Means for the Immigration Debate**

The question is how this new debate will affect the coming midterm elections. Republicans are gambling on gaining enough conservative votes over immigration concerns to support them in November. Often, emotions draw voters to the polls, and this new attack on the 14th Amendment may either gather support from upset conservatives or cause victimized Latinos to shun the Republican Party.

Ultimately, this new push is an attempt to garner Republican support in a changing America, as Sam Fulwood III of the Center for American Progress notes: “Taken at their word, [Conservative Republicans are] concerned that America’s way of life is being threatened as immigrants overwhelm the ability of native citizens to govern and pay for social services. I don’t believe that. I think it’s a fear of the browning of America and a threat to the Republican Party to project itself as a political retreat for conservative, white and male authority over national events. Demographers estimate that by 2050, the nation will no longer have a majority white population with roughly 25 percent of the population Latino, 13 percent African American and another 13-15 percent Asian American. That would leave generously some 45-48 percent of the population defined as non-Hispanic white. Such dramatic demographic change means that politics must change to accommodate the newly emerging voices from people of color. Conservative Republicans seem, as things are going now, likely to lose out on garnering support among these new Americans. My supposition is that by limiting the number of immigrants, the conservative Republicans hope to forestall the browning of America.” Thus as the demographics of this country change rapidly, political actions become more and more drastic. Politicians aim at catering to those most likely to vote, which helps explain this new strategy based on attacking the 14th Amendment. Immigration is a heated issue, and surprisingly, in a June 2010 poll by Rasmussen Reports, 58% of Americans surveyed stated that a child born to an illegal immigrant should not automatically become a U.S. citizen. Thus, while any follow-up action regarding birthright citizenship is unlikely, conservatives may be able to ride through the polls by eliciting an emotional response from the American public regarding immigration. Julia Preston explains this new trend in right-wing politics by citing Sen. Lindsey Graham’s radical change in agenda, stating, “Graham [is a] conservative from a conservative state.” Thus it seems that as politicians cater to party aims, bipartisanship, especially on issues such as immigration, has a dismal future.
 * What This Means for the Future**

What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society.

The GOP push to change the Constitution to eliminate so-called birthright citizenship is already causing problems for some of its own members. Case in point: John McCain. In the final moments of a morning press conference about the stimulus, cohosted by Sen. Tom Coburn (R-OK), McCain asked for one final question from reporters...which happened to be about the 14th amendment and birthright citizenship. McCain abruptly ended the press conference. "We're talking about the stimulus right now," McCain said, before darting off to the elevators down the hall from the Senate studio, where he again declined to take a question. Reporters eventually caught up with McCain in the basement of the Capitol, where he was walking toward to the man-operated train connecting the Senate with the Russell office building. TPMDC asked, "Do you support the Minority Leader's push for hearings into the repeal of birthright citizenship?" "Sure, why not?" McCain said briefly. "Do you support the idea itself?" "I support the idea of having hearings," McCain said. "Do you have a problem with the 14th amendment?" another reporter asked. "You're changing the constitution of the United States," McCain said. "I support the concept of holding hearings." "I support the concept of holding hearings," McCain repeated, turning to the rail car conductor. "Let's go!" he snapped. "I don't have anything to add to that." McCain is seeking reelection in Arizona, a state with a large immigrant population, this year. In the past he's supported comprehensive immigration reform, but recently has tacked to the right on the issue, most sharply during his primary campaign against conservative J.D. Hayworth. With his renomination all but secured, McCain might no longer feel as obligated to support deeply anti-immigrant positions. McCain's Arizona colleague, Minority Whip Jon Kyl, has called for an inquiry into repealing birthright citizenship, while Minority Leader Mitch McConnell yesterday said the Senate should hold hearings about the issue. Coburn's take was significantly more straightforward. "If you go back to the history of the 14th amendment, why was it passed, why did we take away from states the right to give citizenship and give it to the federal government, it was because we were worried states would disenfranchise newly freed slaves," Coburn told reporters. "There was never an intent by our founders, nor if you take the readings, that just because you were here and you have a child born here and you were here not as a resident, that your child would become a citizen. So, I think it's an interesting thing to look at I'm not sure I'm going to embrace it but might. I think we need to look at it." "There's the other side of it, that we have a whole new cottage industry that people of great wealth are coming here to have children too," Coburn added, "so that they can create a basis for anchoring themselves to citizenship in this country." Sens. David Vitter (R-La.) and Rand Paul (R-Ky.) introduced a [|proposal to amend the Constitution] "so that children born in the United States are only considered automatic citizens if one parent is a U.S. citizen, one parent is a legal immigrant, or one parent is an active member of the Armed Forces. They could also follow the traditional naturalization process to attain citizenship." As a preliminary matter, recall that Paul ran as a "constitutional conservative." But that apparently did not mean that he was enamored of maintaining elements of the Constitution that have operated since the Civil War. If mucking around with the 14th Amendment is "constitutional conservatism," then these words have no meaning. There is nothing conservative about a radical constitutional revision, the need for which has yet to be established. Usually, when a constitutional amendment is proposed -- for example, repealing prohibition or securing voting rights for newly freed slaves -- there is some agreement that there is a problem of such magnitude that the Constitution should be altered. Here, the amendment is offered in search of a problem. Proponents of repealing birthright citizenship argue that scores (millions, I guess) of illegal immigrants come here to have babies (dubbed "anchor babies"), who can then help their parents establish citizenship. You may recall the cringe-inducing comments of [|Sen. Lindsey Graham], who posited that "people come here to have babies. They come here to drop a child. It's called 'drop and leave.'" Aside from the grotesque imagery, the problem with this assertion is that it's largely false. Immigration studies by the [|Pew Hispanic Center]and [|Douglas Massey]of the Mexican Migration Project have demonstrated that the drivers for immigration are jobs and family reunification. In fact, roughly 80 percent of immigrant mothers in 2008-2009 had been in the U.S. since 2005, and 90-95 percent were here over a year before having a child. Moreover, a child cannot under federal immigration law help a parent attain citizenship until that child is 21 years old. In sum, pregnant women are not stumbling over the Rio Grande en masse in search of the closest obstetrics wing. A recent [|Migration Policy Institute study] suggested that the consequences of declaring that children born in the U.S. to illegal immigrants are themselves illegal would, by 2050, lead to a 44 percent increase in the illegal immigrant population. For those keen on denying jobs to, or deporting, millions of //current// illegal immigrants, this would dramatically increase our woes. And with each generation the number grows larger and larger. Presumably, the grandchild of an "anchor" baby would be an illegal immigrant under the senators' scheme. In a phone interview on Friday, Dan Griswold of the Cato Institute told me: "The birthright immigration doctrine has served our nation well. We make sure that we don't have second and third generation, marginalized immigrants, as Germany does." He added: "This is part of what makes the U.S. exceptional." Given the paucity of evidence that birthright immigration is a significant issue, the hurdle of enacting a constitutional amendment, and the negative consequences that would follow from repeal of birthright citizenship, Griswold doesn't think the Vitter-Rand proposal is going anywhere. Griswold contends that as long as Americans "understand that "anchor baby" immigration is not a "widespread phenomenon," the idea won't get much traction. And then there is the moral issue. We are talking about children who had no say in their parents' decision-making and/or who can't determine the legal status of their parents. They know no other country than the United States. And Vitter and Rand want to go searching for these children, presumably deny them employment and/or benefits and, I guess, toss them from the country, so that we will dissuade other adults (who exist primarily in Lindsey Graham's imagination) from coming here? It is this sort of harebrained idea, unreasoned and extreme, that raised concerns about Paul's judgment during the campaign. [|Those of us]who loudly [|criticized him], unfortunately, [|may turn]out to be prescient

Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC) appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves. Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution. Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship). “Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8 per cent of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.” The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states that “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 clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected. Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act. Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.” Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed. Thus, as Roberto Suro, a communications and journalism professor at University of Southern California, has stated, “It is a hell of a lot of deferred gratification at best.” The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status. The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants. Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.” On April 14, 2010, an ABC article raised the issue of “birth tourism,” a trend in which wealthy foreigners come to have children in special American-based resorts so that their children will gain American citizenship. The article questions the legitimacy of the 14th Amendment in light of these trends, but has received criticism due to its misrepresentation of certain facts. Birth tourism made up about two-tenths of 1 per cent of all births in 2006. Furthermore, these affluent non-natives have little in common with the undocumented immigrants primarily targeted by attacks on the 14th Amendment. As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life. According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism. On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status. No data have been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.” Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.” As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases. > The citizenship clause of the **14th Amendment**, adopted in 1868, provides that “all persons born or naturalized in the **United States**, and subject to the jurisdiction thereof, are citizens of the United States…” This language has traditionally been interpreted to give automatic citizenship to anyone born on **American** soil, even to the children of illegal immigrants. > **Congress** plans to hold hearings this fall on a constitutional amendment to change that language, something even moderate **Republican** senators like **SC’s** **Lindsey Graham** support. With a new study showing that undocumented mothers account for a disproportionate number of births, even some **Democrats** might find it hard to stand opposed to altering the citizenship clause…. > The clause’s purpose was to guarantee citizenship for former slaves – a right Congress had enacted in 1866 – and to overrule the infamous //**Dred Scott**// decision, which had denied blacks citizenship and helped precipitate the **Civil War**…. > Congress did not, however, discuss the status of children of illegal immigrants – at the time, federal law didn’t limit immigration, so no parents were here illegally…. > The argument against any birthright citizenship is that these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent. > In the extreme case of “anchor babies” – children born after a mother briefly crosses the border to give birth – the notion of automatic citizenship for the child strikes most people as not only anomalous but also offensive. No other developed country except **Canada**, which has relatively few illegal immigrants, has rules that would allow it. > At the same time, we rightly resist punishing children for their parents’ crimes. Without birthright citizenship, they could be legally stranded, perhaps even stateless, in a country where they were born and may spend their lives. And because more than a third of undocumented parents have a least one American child, ending birthright citizenship would greatly increase the number of undocumented people in the country…. =Chapter 2 Immigration Laws and Policies Since the 1980s= In "Immigration: Shaping and Reshaping America" (//Population Bulletin//, June 2003), Philip Martin and Elizabeth Midgley point out that before the 1980s U.S. immigration laws might have changed once in a generation, but the quickening pace of global change since 1980 brought major new immigration legislation in 1986, 1990, and 1996. The September 11, 2001 (9/11), terrorist attacks led to antiterrorism laws that had considerable impact on immigration policies and procedures and that effected changes to immigration legislation. This chapter covers the most significant immigration laws from the 1980s through 2006.
 * The 14th Amendment**
 * “Anchor Babies”**
 * What This Means for the Immigration Debate**

IMMIGRATION REFORM AND CONTROL ACT OF 1986
On November 6, 1986, after thirty-four years with no new major immigration legislation and a six-year effort to send an acceptable bill through both houses of Congress, the Immigration Reform and Control Act of 1986 (IRCA) was signed into law by President Ronald Reagan. To control illegal immigration, the IRCA adopted three major strategies:
 * Legalization of a portion of the undocumented population (aliens in the country without legal papers), thereby reducing the number of aliens illegally resident in the [|United States]
 * Sanctions against employers who knowingly hired illegal aliens
 * Additional border enforcement to impede further unlawful entries

Arrivals before 1982
Two groups of immigrants became eligible to apply for legalization under the IRCA. The largest group consisted of those who could prove they had continuously resided in the United States without authorization since January 1, 1982. This large group of aliens had entered the United States in one of two ways: they arrived as illegal aliens before January 1, 1982, or they arrived on temporary visas (government authorizations permitting entry into a country) that expired before January 1, 1982. To adjust to the legal status of permanent resident, aliens were required to prove eligibility for admission as immigrants and have at least a minimal understanding and knowledge of the English language and U.S. history and government. They could apply for citizenship five years from the date permanent resident status was granted.

Special Agricultural Workers
The second group of immigrants to become eligible to apply for legalization under the IRCA were referred to as special agricultural workers (SAWs). This category was created because numerous fruit and vegetable farmers feared they would lose their workers, many of whom were illegal aliens, if the IRCA provisions regarding length of continuous residence were applied to seasonal laborers. Most of these workers were migrants who returned home to live in [|Mexico] when there was no work available in the fields. The SAW program permitted aliens who had performed labor in perishable agricultural commodities for a minimum of ninety days between May 1985 and May 1986 to apply for legalization.

HOW MANY WERE LEGALIZED?
Nancy Rytina estimates in //IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001// (October 25, 2002, http://www.dhs.gov/xlibrary/assets/statistics/publications/irca0114int.pdf) that three to five million illegal aliens were living in the United States in 1986. Over three million aliens applied for temporary residence status under the IRCA. Nearly 2.7 million (88%) of these applicants were eventually approved for permanent residence. By 2001 one-third (889,033) of these residents had become naturalized citizens. Rytina notes that a majority (75%) of applicants under the IRCA provisions were born in Mexico. The IRCA barred newly legalized aliens from receiving most federally funded public assistance for five years. Exceptions included access to Medicaid for children, pregnant women, the elderly, the handicapped, and for emergency care. The State Legalization Impact Assistance Grant program reimbursed state and local governments the costs for providing public assistance, education, and public health services to the legalized aliens. David Simcox reports in //Measuring the Fallout: The Cost of IRCA Amnesty after 10 Years// (May 1997, http://www.cis.org/articles/1997/back197.htm) that the program reimbursed states $3.5 billion, averaging $1,167 per eligible legalized alien, during its seven years of operation.

Employer Sanctions
The employer sanctions provision of the IRCA was intended to correct a double standard that prohibited unauthorized aliens from working in the United States but permitted employers to hire them. The IRCA prohibited employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Employers who violated the law were subject to a series of civil fines or criminal penalties when a pattern or practice of violations was found. The burden of proof was on employers to demonstrate that their employees had valid proof of identity and were authorized to work. The IRCA required employers to complete the Employment Eligibility Verification form, known as Form I-9, for each employee hired. (See Figure 2.1.) In completing the form the employer certified that the employee had presented valid proof of identity and eligibility for employment and that these documents appeared genuine. The IRCA also required employers to retain the completed I-9 forms and produce them in response to an official government request.

Challenges of Verifying Employee Eligibility for Work
Because employers had to verify employee eligibility for work, some ineligible workers illegally assumed the identities of individuals whose status could be documented. The Federal Trade Commission reports that in 2005 there were 255,565 nationwide complaints of identity theft, a 19% increase over the 215,177 complaints in 2003 (//Identity Theft Victim Complaint Data: Figures and Trends, January 1-December 31, 2005//, January 25, 2006, http://www.consumer.gov/idtheft/pdf/clearinghouse_2005.pdf). Of the complaints registered in 2005, 12% included use of a stolen identity for employment-related fraud. Identity theft gained national attention as victims reported their struggles to resolve credit card charges for purchases they did not make and negative entries on credit reports for debts they did not incur. Some citizens were questioned by the Internal Revenue Service about failure to report income related to taxes deposited to their Social Security accounts. Many responded that they had never worked for the companies that made the tax deposits. Demands for government action to stop identity theft increased. Some complaints by citizens who had received Social Security tax contributions from companies that weren't their employers were traced to Swift &Company ®, a beef and pork processor headquartered in [|Colorado]. According to U.S. Immigration and Customs Enforcement (ICE; December 13, 2006, http://www.ice.gov/pi/news/newsreleases/articles/061213dc.htm), armed ICE agents surrounded Swift meat processing plants in six states in December 2006. The agents arrested 1,282 illegal aliens in the Swift raids, and 65 people were arrested on criminal charges that included identity theft. According to ICE, the raids culminated a ten-month investigation of identity theft complaints filed with the Federal Trade Commission. To assist employers in complying with the Illegal Immigration Reform and Immigrant Responsibility Act and the IRCA, the Social Security Administration in 1966 began the Basic Pilot Program, a computerized system that allowed employers to check the validity of Social Security numbers (SSNs) presented by new hires. It was tested with employers in [|California], [|Florida], [|Illinois], and [|Texas] before being expanded on December 1, 2004, to voluntary employers in all states. The program returned a "tentative nonconfirmation" if the name, date of birth, or gender of the new hire did not match Social Security records; if the SSN had never been issued; or if records indicated the person issued that SSN was deceased. The new hire had a set time limit for resolving the problem with the Social Security Administration before the employer could terminate the individual. Bruce Finley and Tom McGhee report in "Raids at Swift Plants Target Identity Theft" (//Denver Post//, December 13, 2006) that Swift had participated in the Basic Pilot Program for nearly a decade but the raids showed that the system did not recognize identity theft. Basic Pilot confirmed the validity of the SSN but did not check to see how many times and in what locations the number had been used for employment. Thus, several people could be using the same number on fraudulent identification (IDs). Even though the Swift raids left employers feeling threatened, they were assured that by using the tools provided by the government, they would be hiring legally eligible workers.

IMMIGRATION MARRIAGE FRAUD AMENDMENTS OF 1986
Before 1986 the U.S. Immigration and Naturalization Service (INS) granted permanent residence fairly quickly to the foreign spouses of U.S. citizens or lawful permanent residents (LPRs). However, a number of marriages between Americans and foreigners occurred purely to attain U.S. permanent residence status for the foreigner. Some U.S. citizens or LPRs agreed to marry aliens for money. After the alien gained permanent residence, the marriage was dissolved. Other cases involved aliens entering into marriages by deceiving U.S. citizens or LPRs with declarations of love, only to seek divorce after gaining permanent residence. The Immigration Marriage Fraud Amendments of 1986 specified that aliens basing their immigrant status on a marriage of less than two years were considered conditional immigrants. To remove the conditional immigrant status, the alien had to apply for permanent residence within ninety days after the second-year anniversary of receiving conditional status. The alien and his or her spouse were required to show that the marriage was and continued to be a valid one; otherwise, conditional immigrant status was terminated and the alien could be deported. Wendy Koch notes in "Va. Case Highlights Fraudulent Marriages" (//USA Today, November// 8, 2006, http://www.usatoday.com/news/nation/2006-11-08-greencard_x.htm) that during fiscal year (FY) 2004 through FY2006 ICE investigated seven hundred cases of marriage fraud. ICE found that marriage fraud organizations typically charged $2,500 to $6,000 to arrange a marriage for immigration purposes. Marriage fraud took on more serious implications after 9/11. Koch reports that according to the Center for Immigration Studies, half of the thirty-six suspected 9/11 terrorists gained legal status by marrying Americans, ten through sham marriages.

Battered Brides
Spousal abuse sometimes results from the two-year conditional immigrant status. Particularly in cases of mailorder brides and brides from countries where women have few, if any, rights, some husbands take advantage of the power they have as the wife's sponsor. The new wives are dependent on their husbands to obtain permanent U.S. residence. The U.S. Department of Justice finds cases of alien wives who are virtual prisoners, afraid they will be deported if they defy their husbands or report abuse. In addition, some of the women come from cultures in which divorced women are outcasts with no place in society. The Violence against Women Act of 1994 — which is part of the Violent Crime Control and Law Enforcement Act of 1994 — and the Victims of Trafficking and Violence Prevention Act of 2000 were enacted to address the plight of such abused women and their children. The 1994 law allows the women and/or children to self-petition for immigrant status without the abuser's participation or consent. Abused males can also file a self-petition under this law. The 2000 law created a new nonimmigrant U-visa for victims of serious crimes. Recipients of the U-visa, including victims of crimes against women, can adjust to lawful permanent resident status based on humanitarian grounds as determined by the U.S. attorney general.

IMMIGRATION ACT OF 1990
Shortly afte the IRCA was passed, Senators Edward Kennedy (D-Massachusetts) and Alan Simpson (R-[|Wyoming]) began work to change the Immigration and Nationality Act Amendments of 1965, which determined legal immigration into the United States. The senators asserted that the family-oriented system allowed one legal immigrant to bring too many relatives into the country. They proposed to cut the number of dependents admitted and replace them with individuals who had the skills or money to immediately benefit the U.S. economy. The result of their efforts was the Immigration Act of 1990 (IMMACT). Enacted on November 29, 1990, IMMACT represented a major overhaul of immigration law. The focus of the new law was to raise the annual number of immigrants allowed and give greater priority to employment-based immigration. A diversity program encouraged applications for emigration from countries with low immigration history. Michael J. Greenwood and Fred A. Ziel, in //The Impact of the Immigration Act of 1990 on U.S. Immigration// (January 2, 1998, http://migration.ucdavis.edu/mn/cir/Greenwood/combined.htm), indicate that the total number of immigrants was set at 700,000 annually from FY1992 through FY1994 with an annual level of 675,000 beginning in FY1995. At the 675,000 level, the annual immigrant pool was roughly 70% family sponsored immigrants (480,000), 20% employment-based immigrants (140,000), and 10% diversity immigrants (55,000).

Employment-Based Immigration
IMMACT nearly tripled the allowed level of employment-based immigration — from 54,000 to 140,000. The goal was to attract professional people with skills that would promote U.S. economic development rather than the unskilled workers who were legalized through the IRCA. However, the allotment of 140,000 included both workers and their families, so the actual number of workers was considerably lower.

Diversity Visa Program
IMMACT made new provisions for the admission of immigrants from countries with low rates of immigration to the United States. The program was introduced as a transitional measure from 1992 to 1994. Ruth Ellen Wasem and Karma Ester report in "Immigration: Diversity Visa Lottery" (April 22, 2004, http://www.ilw.com/immigdaily/news/2005,0809-crs.pdf) that under the permanent program, which began in 1995, no country was permitted more than 7% (3,850) of the total 55,000 visas, and [|Northern Ireland] was treated as a separate state. To be eligible, aliens were required to have at least a high school education or equivalent, or at least two years of work experience in an occupation that required a minimum of two years' training or two years' experience within the past five years. An alien selected under the lottery program could apply for permanent residence and, if granted, was authorized to work in the United States. The alien's spouse and unmarried children under age twenty-one were also allowed to enter the United States. Beginning with FY1999, five thousand visas were reserved for participants in the 1997 Nicaraguan Adjustment and Central American Relief Act. This law provided various immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet-bloc countries, and their dependents.

RESULTS OF THE 2007 DIVERSITY LOTTERY
According to the U.S. Department of State in "Diversity Visa Lottery 2007 (DV-2007) Results" (2007, http://travel.state.gov/visa/immigrants/types/types_1317.html), over 5.5 million qualified entries for DV-2007 were received during the sixty-day application period (October 5, 2005, to December 4, 2005). Natives of [|Canada], [|China] (mainland born, excluding [|Hong Kong] and [|Taiwan]), [|Colombia], the [|Dominican Republic], [|El Salvador], [|Haiti], [|India], Jamaica, Mexico, [|Pakistan], the [|Philippines], Poland, Russia, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam were not eligible. Eighty-two thousand of the 5.5 million people who entered DV-2007 were notified that they may apply for an immigrant visa; even though only 50,000 visas are available through the lottery, the Department of State contacts a larger number of applicants to ensure that none of the 50,000 visas go unused. The countries with the highest representation among the 82,000 potential immigrants in DV-2007 included Nigeria (9,849), Egypt (7,229), Ukraine (7,205), Ethiopia (6,871), and Bangladesh (5,901).

Efforts to End the Diversity Visa Program
In 2004 the House Judiciary Committee issued //House Report 108-747 — Security and Fairness Enhancement for America Act of 2003// (October 6, 2004, http://thomas.loc.gov/cgi-bin/cpquery/R?cp108:FLD010:@1(hr747)), which supported a bill to end the Diversity Lottery Program. The report noted many aliens filed multiple applications using a variety of aliases, and fraudulent documents were common in many countries because of poor control of vital records and identity documents. The report also said the Diversity Visa Program posed a threat to national security. According to the report, among the 2004 applicants selected were 1,183 Sudanese, 1,431 Iranians, 674 Cubans, 64 Syrians, 24 Libyans, and 4 North Koreans — all from countries that the United States considered state sponsors of terrorism. However, no legislation to end the program was enacted by the close of the 2006 legislative session.

Changing Grounds for Entry
IMMACT changed the political and ideological grounds for exclusion and deportation. The law repealed the ban against the admission of communists and representatives of other totalitarian regimes that had been in place since 1950. In addition, immigration applicants who had been excluded previously because of associations with communism were provided exceptions if the applicants had been involuntary members of the communist party, had terminated membership, or merely had close family relationships with people affiliated with communism.

Temporary Protected Status
IMMACT authorized the U.S. attorney general to grant temporary protected status (TPS) to undocumented aliens present in the United States when a natural disaster, ongoing armed conflict, or other extraordinary occurrence in their countries posed a danger to their personal safety. TPS lasts for six to eighteen months unless conditions in the alien national's country warrants an extension of stay. TPS does not lead to permanent resident status, although such aliens can obtain work authorization. Once the TPS designation ends, the foreign nationals resume the same immigrant status they had before TPS (unless that status has expired) or any new status obtained while in TPS. According to the U.S. Citizenship and Immigration Services (USCIS), as of April 2007 applicants from seven nations — Burundi, El Salvador, Honduras, Liberia, Nicaragua, Somalia, and Sudan — were eligible for temporary protected status (http://www.uscis.gov).

WELFARE REFORM LAW OF 1996
Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 federal welfare benefits for legal immigrants were cut substantially and the responsibility for public assistance was shifted from the federal government to the states. (Illegal immigrants were already ineligible for most major welfare programs.) The law was designed to ensure that available welfare benefits did not serve as an incentive for immigration and that immigrants admitted to the United States would be self-reliant. In the past legal immigrants had generally been eligible for the same welfare benefits as citizens. Under the new rules immigrants who had become naturalized citizens remained eligible for federal benefits, but most noncitizens were barred from participating in federal programs such as Temporary Assistance for Needy Families (TANF), food stamps, Supplemental Security Income (SSI), and Medicaid. (TANF is a federal block grant program for needy families with dependent children that replaced the Aid to Families with Dependent Children, Emergency Assistance, and Job Opportunities and Basic Skills programs, whereas Medicaid is a joint federal-state health insurance program for certain low-income and needy people; SSI is a federal income supplement program funded by general tax revenues — not Social Security taxes — that assists aged, blind, and disabled people who have little or no income.) States were given the option of using federal funds for TANF and Medicaid for immigrants who arrived before the act took effect. Immigrants who arrived legally after the law took effect were ineligible for any federal funds for five years; states then had the option of granting their applications for TANF and/or Medicaid.

The 14th Amendment to t he Constitution was not intended to grant citizenship to the children of people living in our country illegally. Adopted in 1868, this Amendment was specifically designed to address the horrible injustice of slavery by guaranteeing that children born to former slaves would automatically be American citizens

The 14th amendment was adopted in the aftermath of the civil war expressly to ensure that all persons born in the U.S. would be citizens, and that no state or individual could redefine citizenship to create an underclass. Repealing the 14th Amendment would do exactly what its authors sought to prevent almost 150 year s ago. In the U. S. we do not hold incent babies accountable for their parents. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society. He’s right about what a Constitution is for. The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government. (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes. There really is a difference.) And he’s even right about the role of the courts in deciding things that are properly left to legislatures. He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on. Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on. Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years. The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result. But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex. It does. It really does. Nobody thought that’s what the Fourteenth Amendment meant when it was passed. Granted. But that only means they didn’t have the insight to recognize the very principle they were upholding.

GOP Senate nominee Sharron Angle, during a media availability earlier Monday, argued "certainly someone who has not come here under the rule of law is not under our jurisdiction," aligning herself with prominent Republicans who have agitated for Capitol Hill action on what she and others call "the anchor baby issue."

"I think Congress needs to become involved," Angle said at her campaign headquarters during a 15-minute Q and A with a handful of journalists.

Angle said she consulted on the issue with John Eastman, a constitutional law expert she has used since 2003, when he advised her on that federal lawsuit against the then-largest tax increase in history. (She has consistently implied the issue went to the U.S. Supreme Court, but it never was heard there.)

When asked about the DREAM Act, Angle said she is "skeptical of Democrtaic proposals because generally cloaked within those proposals is amnesty ... The rule of law should apply equally to every part of our society."

Angle also told the media, "We want to stick to the issues; that's why I'm glad you're here. I made some comments about making friends with the press and really talking about the issues that really matter to Nevadans." And the ones that really matter to her in gaining political advantage, too — as she put it earlier, "The economy. The economy. The economy."

Angle also was asked about Reid's "war is lost" remark, which came up over the weekend after news reports showed some revisionist history by the Reid campaign. "I think certainly Harry Reid demoralized the troops by saying the war is lost," she said. "He has given the military deep concerns with his support for them."

Angle spoke to the media after a rah-rah speech to some volunteers assembled in a courtyard adjacent to her headquarters on the west side of the Las Vegas Valley. Angle said the campaign will be "moving forward with other messages," and added, "We welcome the discussion on Social Security."

She would later downplay the trustees saying last week that benefits could still be paid until 2037 and focused on the 2010 news that the red ink was starting to flow. Even though most analysts agree that either payroll tax increases or benefit cuts will be needed to solve the problem — hence the lack of action — she suggested pouring unused stimulus money and repaid TARP funds to help replace what she calls the IOUs currently there. Really?

And she painted quite the picture of Reid on the economy and the stimulus promises, saying, "This man knows no bounds when he's spreading fear."

The citizenship clause of the 14th Amendment, adopted in 1868, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” This language has traditionally been interpreted to give automatic citizenship to anyone born on American soil, even to the children of illegal immigrants.

Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC), in a surprisingly radical move on his part, appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves. Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a staunch Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution. Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship). Busy schedule? Click here to keep up with Truthout with free email updates. “Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8% of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.” The 14th Amendment The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states that “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 clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected. Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act. Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.” “Anchor Babies” Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed. Thus, as Roberto Suro, a communications and journalism professor at University of Southern California, has stated, “It is a hell of a lot of deferred gratification at best.” The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status. The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Roberto Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants. Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.” On April 14th, 2010, an ABC article raised the issue of “birth tourism,” a trend in which wealthy foreigners come to have children in special American-based resorts so that their children will gain American citizenship. The article questions the legitimacy of the 14th Amendment in light of these trends, but has received criticism due to its misrepresentation of certain facts. Birth tourism made up about two-tenths of 1% of all births in 2006. Furthermore, these affluent non-natives have little in common with the undocumented immigrants primarily targeted by attacks on the 14th Amendment. As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life. According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism. On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status. No data has been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.” Therefore, Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.” What This Means for the Immigration Debate This country needs immigration reform. However, changing the Constitution to reflect the racial tensions of the day is an inappropriate solution and demeans the values that this country was founded on. As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases. The question is how this new debate will affect the coming midterm elections. Republicans are gambling on gaining enough conservative votes over immigration concerns to support them in November. Often, emotions draw voters to the polls, and this new attack on the 14th Amendment may either gather support from upset conservatives or cause victimized Latinos to shun the Republican Party. What This Means for the Future Ultimately, this new push is an attempt to garner Republican support in a changing America, as Sam Fulwood III of the Center for American Progress notes: “Taken at their word, [Conservative Republicans are] concerned that America’s way of life is being threatened as immigrants overwhelm the ability of native citizens to govern and pay for social services. I don’t believe that. I think it’s a fear of the browning of America and a threat to the Republican Party to project itself as a political retreat for conservative, white and male authority over national events. Demographers estimate that by 2050, the nation will no longer have a majority white population with roughly 25 percent of the population Latino, 13 percent African American and another 13-15 percent Asian American. That would leave generously some 45-48 percent of the population defined as non-Hispanic white. Such dramatic demographic change means that politics must change to accommodate the newly emerging voices from people of color. Conservative Republicans seem, as things are going now, likely to lose out on garnering support among these new Americans. My supposition is that by limiting the number of immigrants, the conservative Republicans hope to forestall the browning of America.”

Thus as the demographics of this country change rapidly, political actions become more and more drastic. Politicians aim at catering to those most likely to vote, which helps explain this new strategy based on attacking the 14th Amendment. Immigration is a heated issue, and surprisingly, in a June 2010 poll by Rasmussen Reports, 58% of Americans surveyed stated that a child born to an illegal immigrant should not automatically become a U.S. citizen. Thus, while any follow-up action regarding birthright citizenship is unlikely, conservatives may be able to ride through the polls by eliciting an emotional response from the American public regarding immigration. Julia Preston explains this new trend in right-wing politics by citing Sen. Lindsey Graham’s radical change in agenda, stating, “Graham [is a] conservative from a conservative state.” Thus it seems that as politicians cater to party aims, bipartisanship, especially on issues such as immigration, has a dismal future. What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society.

Birthright citizenship in the United States refers to a person's acquisition of United States citizenship by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization later in life. Birthright citizenship may be conferred by jus soli or jus sanguinis. Under United States law, any person born within the United States (including the territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands)[1] and subject to its jurisdiction is automatically granted U.S. citizenship,[2] as are many (though not all) children born to American citizens overseas.

1. 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. 2. 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. 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, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. 3. 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. 4. 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. 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, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Over the last decade or so, concern about illegal immigration has sporadically led to a reexamination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened attention and interest in restricting automatic birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United States on non-immigrant work visas and arguably entitled to rights not available to foreign enemy combatants. More recently, some congressional Members have supported a revision of the Citizenship Clause or at least holding hearings for a serious consideration of it. An Arizona state legislator has voiced support for state legislation that would deny birth certificates to persons born to undocumented aliens. This report traces the history of this principle under U.S. law and discusses some of the legislation in recent Congresses intended to alter it. The traditional English common-law followed the doctrine of jus soli, under which persons born within the dominions of and with allegiance to the English sovereign were subjects of the sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and persons born to citizens of a hostile occupying force, who are born subjects of the invading sovereign. Although the states and courts in the United States apparently adopted the jus soli doctrine, there still was confusion about whether persons born in the United States to alien parents were U.S. citizens. This arose because citizenship by birth in the United States was not defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn between a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship. Additionally, African Americans were not considered citizens of the United States, even if they were free. Native Americans also were not considered U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to African Americans and also to most persons born in the United States. In an 1898 decision, United States v. Wong Kim Ark, the United States Supreme Court made clear that U.S.-born children of aliens were U.S. citizens regardless of the alienage and national origin of their parents, with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation forces of a foreign nation. However, in the 1884 decision Elk v. Wilkins, the Supreme Court held that Native Americans were not U.S. citizens under the terms of the Citizenship Clause. Native Americans were U.S. citizens by treaties or statutes granting U.S. citizenship to members of specific tribes. Immigration statutes enacted in 1924, 1940, and 1952 granted U.S. citizenship to all Native Americans.

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. The major provision of the 14th amendment was to grant citizenship to “All persons born or naturalized in the United States,” thereby granting citizenship to former slaves. Another equally important provision was the statement that “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.” The right to due process of law and equal protection of the law now applied to both the Federal and state governments. On June 16, 1866, the House Joint Resolution proposing the 14th amendment to the Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared, in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and became part of the supreme law of the land. Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th amendment, intended that the amendment also nationalize the Federal Bill of Rights by making it binding upon the states. Senator Jacob Howard of Michigan, introducing the amendment, specifically stated that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.” Historians disagree on how widely Bingham's and Howard's views were shared at the time in the Congress, or across the country in general. No one in Congress explicitly contradicted their view of the Amendment, but only a few members said anything at all about its meaning on this issue. For many years, the Supreme Court ruled that the Amendment did not extend the Bill of Rights to the states. Not only did the 14th amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of black citizens. One legacy of Reconstruction was the determined struggle of black and white citizens to make the promise of the 14th amendment a reality. Citizens petitioned and initiated court cases, Congress enacted legislation, and the executive branch attempted to enforce measures that would guard all citizens’ rights. While these citizens did not succeed in empowering the 14th amendment during the Reconstruction, they effectively articulated arguments and offered dissenting opinions that would be the basis for change in the 20th century. (Information excerpted from //Teaching With Documents// [Washington, DC: The National Archives and Records Administration and the National Council for the Social Studies, 1998] p. 40.) Chalk it up perhaps to election-year bizarreness, but suddenly the capital is debating whether the 14th Amendment of the U.S. Constitution ought to be repealed, refined or left alone. Specifically, the back-and-forth, which started among Senate Republicans and was joined Tuesday by the White House, focuses on the amendment's citizenship clause. A pair of Republican senators -- Jon Kyl of Arizona and Lindsey Graham of South Carolina -- are not so sure the amendment's intent was to grant automatic citizenship to children born in the United States to parents here illegally. On Monday, Senate Minority leader Mitch McConnell (R-Ky.) raised the stakes, saying, "We ought to take a look at it -- hold hearings, listen to the experts on it." "I haven't made a final decision about it, but that's something that we clearly need to look at," he told The Hill newspaper. "Regardless of how you feel about the various aspects of immigration reform, I don't think anybody thinks that's something they're comfortable with." Enter the White House, which has spoken loudly of the need for comprehensive immigration reform but, in the view of some senators and Latino activists, failed to push very hard in favor of the politically difficult legislation during a mid-term election year. **Legal scholar Gene Healy has made a powerful argument in favor of abolishing the Fourteenth Amendment to the US Constitution. When a fair vote was taken on it in 1865, in the aftermath of the War for Southern Independence, it was rejected by the Southern states and all the border states. Failing to secure the necessary three-fourths of the states, the Republican party, which controlled Congress, passed the Reconstruction Act of 1867 which placed the entire South under military rule.** **The purpose of this, according to one Republican congressman, was to coerce Southern legislators to vote for the amendment at the point of a bayonet. President Andrew Johnson called this tactic absolute despotism, the likes of which had not been exercised by any British monarch for more than 500 years. For his outspokenness Johnson was impeached by the Republican Congress.** **The South eventually voted to ratify the amendment, after which two Northern states Ohio and New Jersey withdrew support because of their disgust with Republican party tyranny. The Republicans just ignored this and declared the amendment valid despite their failure to secure the constitutionally-required three-fourths majority.** **The Cato Institute s Roger Pilon, who is a supporter of the Fourteenth Amendment, has defended the way in which the amendment was adopted on the grounds that after the war some Southern states had enacted the notorious Black Codes (Liberty Magazine, Feb. 2000).** **What should Congress have done, Pilon asked, turn a blind eye to what was going on? The notion that a racially-enlightened and benevolent Republican Congress unconstitutionally imposed the Fourteenth Amendment on the nation because it was motivated primarily (if not solely) out of concern with racial discrimination in the South is childishly naive and ahistorical. The fact is, Northern states pioneered viciously discriminatory black codes long before they existed in any Southern state, and these codes were supported by many of the same Northern politicians who voted for the Fourteenth Amendment.** **The Revised Code of Indiana stated in 1862 that Negroes and mulattos are not allowed to come into the state ; forbade the consummation of legal contracts with Negroes and mulattos ; imposed a $500 fine on anyone who employed a black person; forbade interracial marriage; and forbade blacks from testifying in court against white persons.** **Illinois the land of Lincoln added almost identical restrictions in 1848, as did Oregon in 1857. Most Northern states in the 1860s did not permit immigration by blacks or, if they did, required them to post a $1,000 bond that would be confiscated if they behaved improperly.** **Senator Lyman Trimball of Illinois, a close confidant of Lincoln s, stated that our people want nothing to do with the Negro and was a strong supporter of Illinois black codes. Northern newspapers were often just as racist as the Northern black codes were. The Philadelphia Daily News editorialized on November 22, 1860, that the African is naturally the inferior race. The Daily Chicago Times wrote on December 7, 1860, that nothing but evil has come from the idea of Abolition and urged everyone to return any escaped slave to his master where he belongs.** **On January 22, 1861, the New York Times announced that slavery would indeed be a very tolerable system if only slaves were allowed to legally marry, be taught to read, and to invest their savings. In short, the cartoonish notion that the Republican party was so incensed over racial discrimination in the South after the war that, in a fit of moral outrage, it trashed all constitutional precepts to dictatorially adopt the Fourteenth Amendment, should not be taken seriously. As Alexis de Tocqueville wrote in Democracy in America, it was obvious to all that racial prejudice was stronger in the North than it was in the South. The prejudice of race, wrote Tocqueville, appears to be stronger in the states that have abolished slavery than in those where it still exists.** **If the Republican party was so sensitive about racial discrimination in the post-war era it would not have sent General Sherman out west just three months after the war ended to commence a campaign of genocide against the Plains Indians. The very same army that had recently conquered and occupied the Southern states led by Generals Grant, Sherman, and Sheridan mass murdered Indian men, women, and children during the winters, when families would be together, with massive Gatling gun and artillery fire. In a letter to his son a year before he died (1889), Sherman expressed his regret that his armies did not murder every last Indian in North America.** **The Fourteenth Amendment has had precisely the effect that its nineteenth-century Republican party supporters intended it to have: it has greatly centralized power in Washington, D.C., and has subjected Americans to the kind of judicial tyranny that Thomas Jefferson warned about when he described federal judges as those who would be constantly working underground to undermine the foundations of our confederated fabric. It s time for all Americans to reexamine the official history of the Civil War and its aftermath as taught by paid government propagandists in the public schools for the past 135 years.** The immigration debate sparked by Arizona's controversial new law has revived calls to reconsider the Constitution's 14th Amendment. The amendment, ratified more than 140 years ago, grants automatic citizenship to nearly any child born in the U.S. Critics say it's an irresistible lure to illegal immigrants — and needs to be revised. Recently, it's been getting a lot of play on the cable news shows. CNN's Anderson Cooper recently tried to moderate opposing viewpoints over whether it's time to change the citizenship clause. The furor was touched off by Republican Sen. Lindsey Graham of South Carolina who said he thinks giving automatic citizenship to children of non-residents is a mistake.
 * Republicans Call For Senate Hearings**

To have a child in America, they cross the border, they go to an emergency room, have a child and that child is automatically an American citizen. That shouldn't be the case — that attracts people here for all the wrong reasons.

- Sen. Lindsey Graham (R-SC) "People come here to have babies," Graham said. "They come here to drop a child — it's called drop and leave. To have a child in America, they cross the border, they go to an emergency room, have a child and that child is automatically an American citizen. That shouldn't be the case — that attracts people here for all the wrong reasons." Graham has been joined by other leading Republicans, including Sen. John McCain of Arizona and Senate Minority Leader Mitch McConnell of Kentucky, in calling for Senate hearings on whether changes to the 14th Amendment are needed. They say not only are tourists taking advantage of the automatic citizenship clause, but so are illegal immigrants who use their citizen children to petition for legal residency. Many refer to these children of illegal immigrants as "anchor babies." Fatima Renteria says she's never heard the term "anchor baby" before. Her parents brought her to the U.S. illegally when she was 4 months old. She's now 22 and just had a baby of her own who is an automatic U.S. citizen. "I don't even know how to reply to that without being too angry," she says. "I didn't decide to just come here to have a baby here. I've been here my whole life, grew up and got married and decided to have a baby."
 * 'He Has Rights'**

I didn't decide to just come here to have a baby here. I've been here my whole life, grew up and got married and decided to have a baby.

- Fatima Renteria Renteria was in line in the admissions office of a Southern California community college, waiting to see a counselor. She says she wants to be a high school math teacher. She says illegal immigrants don't come to the United States to have babies — they come to have a better life. She's upset that lawmakers would try and take away her son's citizenship rights. "He has rights. He was born here. He has rights ... they can't just do that," she says. Immigrant advocates say Republicans are creating a controversy to keep the issue of illegal immigration in the news through midterm elections in November. Elizabeth Wydra of the Constitutional Accountability Center says repealing the citizenship clause is too drastic a move and would mark the first time the Constitution would be amended to make it less egalitarian. "While everyone recognizes that there are problems with our immigration system in this country, my perspective is: Let's try to fix this through legislation and not tinker with the genius of our constitutional design," she says. The 14th Amendment was ratified after the Civil War to ensure that children of freed slaves would be granted citizenship, and scholars say it is on solid legal ground. The Supreme Court upheld the amendment when it ruled in favor of a man born in the U.S. to Chinese immigrants and granted him citizenship back in 1892. But Rep. Brian Bilbray (R-CA) says it's been more than a century since the Supreme Court has weighed in on the issue — and it's long overdue. Bilbray has been fighting since the 1990s to change the 14th Amendment citizenship clause. He says in these tough economic times, the law must be reviewed. "When you say there's not enough to go around for those who are here legally — or those playing by the rules — you sort of say, 'Why do we continue to have an enticement to encourage people to break the law?'" he says. The Fourteenth Amendment was originally ratified to protect the freedman from the abrogation of his rights by the Southern states. Looking to protect the African American, the amendment made him a citizen and forced the federal government to be responsible for him. The Fourteenth Amendment prohibited the States from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process.
 * The 14th Amendment**
 * Section 1.** 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 of 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.
 * Repealing The Clause: A Radical Move**

It was obvious that the "political rights" part of the proposed change was intended to open the way for Black voting on a national scale. The wording of the amendment looked something, though obviously not completely, like this: "Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, counting the whole number of citizens of the United States; provided that whenever in any State civil or political rights or privilege shall be denied or abridged on account of race or color, all persons of such race or color shall be excluded from the basis of representation or taxation." Ratification of the document took a horribly long time due to the fact that it occurred toward the end of the Civil War. Ironically, the amendment was ratified on July 28, 1868. Southern states were required to ratify it in order to be readmitted into the Union. However, the Supreme Court's ruling in the 1873 Slaughterhouse cases diluted the amendment so much that all federal control over state police powers was virtually eliminated. The Fourteenth Amendment was also very important much later on, in the 1950s and 1960s. While originally constructed to deal with the rights of freedmen, cases such as [|Brown vs. Board of Education], turned to a quite similar issue. Its interpretation came to be the legal heart of the civil rights movement of the `60s. The fourteenth amendment was arguably the most important of all. It radically changed the definition of the United States Citizen. ** **  **  **  **  **  **  **  **  **  **  **The Fourteenth Amendment was one of three amendments to the Constitution adopted after the Civil War to guarantee black rights. The Thirteenth Amendment abolished slavery, the Fourteenth granted citizenship to people once enslaved, and the Fifteenth guaranteed black men the right to vote. The Fourteenth Amendment was passed by Congress in June 1866 and ratified by the states in 1868. The Radical Republicans had been battling with Andrew Johnson for control of Reconstruction. Johnson was in favor of leaving the future of black people in the hands of white Southerners. The Radical Republicans disagreed, and they won. The amendment was designed to grant citizenship to and protect the civil liberties of recently freed slaves. It did this by granting citizenship to anyone born in the United States and prohibiting states from denying or abridging the privileges or immunities of citizens of the U.S., depriving any person of his life, liberty, or property without due process of law, or denying to any person within their jurisdiction the equal protection of the laws. ("No state shall make or enforce any law which shall abridge the privileges** **  **  **  **  **  **  **  **  **  **  **  by blacks during Reconstruction was seen as a threat by whites. || 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.") With the exception of Tennessee, the Southern states refused to ratify the Fourteenth Amendment. The Republicans then passed the Reconstruction Act of 1867, which set the conditions the Southern states had to accept before they could be readmitted to the union, including ratification of the 14th Amendment.
 * [[image:http://www.pbs.org/wnet/jimcrow/images/media_feature.gif width="212" height="162" caption="Media Feature - Watch the Video"]] || [[image:http://www.pbs.org/wnet/jimcrow/images/spacer.gif width="10" height="1"]] ||
 * **Why the progress made**

Since Reconstruction, the Fourteenth Amendment -- especially the equal protection clause -- has been applied to a number of cases. It emerged in the famous Brown v. Board of Education of Topeka when the United States Supreme Court used the Fourteenth Amendment as one of its rationales for declaring school segregation unconstitutional. ** **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **﻿**  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  To understand the goal and function of the Fourteenth Amendment's first section one needs to understand that its entire purpose was to give legal effect to the Civil Rights Bill of 1866. The goal of both of thee acts were to put an end to the criminal black codes established under former rebel States that at the time was being administered by President Andrew Johnson. Because former slaves were considered emancipated citizens of the United States by Lincoln's Emancipation, Congress felt it was vital to protect their fundamental rights as United States citizens under Article IV, Sec. II of the U.S. Constitution wherever they traveled within the Union (especially in the South). These fundamental rights of United States citizens (not citizens residing within their own State) were strictly defined as due process in criminal proceedings and for the equal administration of due process that included equal pains and penalties of law. Under the original Constitution, citizens of the United States were required to be first a citizen of some State - something newly emancipated citizens could not claim. This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens by withholding the right to protection of the laws in life, liberty or property in the courts as enjoyed by white citizens. It should be pointed out that after the south surrendered there was no longer any organized Southern States belonging to the Union, only federally administered former States that became divided into military districts whose inhabitants were primarily citizens of the United States. The problem with the administration of these former rebel States was with President Andrew Johnson who drew fierce opposition from Republicans because he did not consult with Congress on his administration plans. Senator Jacob Howard called the temporary former rebel State governments set up by President Johnson “bogus governments” and “unconstitutional,” resting “upon military edicts of the president of the United States, so far as they have any foundation and operation.” 1 It is no wonder than, when the former rebel State of Mississippi was allowed to form militias by President Johnson they excluded emancipated citizens from forming armed militias and he was accused of infringing the Second Amendment against black citizens because these former States were now the wards of the Federal Government and not organized State governments. The current judicial notion that the Fourteenth Amendment incorporates the first Eight Amendments either, totally or selectively, is without merit or constitutional foundation but also in direct defiance of the official legislative interpretation left by those who had framed and adopted it. The Fourteenth Amendment's first section was not very controversial because it was widely believed to give only effect to the popular Civil Rights bill of 1866 calling for equality before State courts in law and proceedings for the security of person and property, to sue and for blacks to be subject to the same pains and penalties as white men. The first prototype of section one to amend the Constitution presented to the Reconstruction Committee for consideration was from Robert Dale Owen. It read, //“No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons, because of race, color, or previous condition of servitude.//” Rep. John A. Bingham (OH) offered only lukewarm approval, adding that it “//ought to specify, __in detail__, the civil rights which we propose to assure.//” 2 On December 6, 1866, Bingham offered a separate proposal to amend the Constitution with the intention “//to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property.//” Bingham omitted the United States from his proposal because, as will be shown later, the United States was already restrained by the words “any person” shall not be “deprived of life, liberty, or property, without due process of law” under the Fifth Amendment. There was serious concern whether Bingham's stand-alone amendment would have any chance of being adopted, and the prevailing thought was it would have to be made part of an existing proposal that would be found popular with the people in the north, e.g., rebel debt and prohibition of former rebels from holding office. After some persistence on Bingham's part, the Committee of Reconstruction approved his February omnibus proposal that read: > The Congress shall have power to make laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. > > (Note that Bingham uses the words “equal protection” in place of “due process” in this initial proposition to amend the Constitution.) The first question such language inspires is exactly what Congress is supposed to secure by law, and equally important, what is forbidden of the States? Rep. Bingham helps us out in a February 26, 1866 speech by stating that every “word in the proposed [Fourteenth] Amendment is today in the Constitution of our country.” 3 This is an aid because any confusion arising over the application of the words we can just look to see what the words had always meant under the Constitution. Bingham goes on to detail where these words come from, which of course is a helpful aid as well: > The residue of the resolution, as the House will see by a reference to the Constitution, is in the language of the second section of the fourth article, and of a portion of the Fifth Amendment adopted by the First Congress in 1789, and made part of the Constitution of the Country. 4 Mr. Bingham then tells us this language will “**__not impose upon any State of the Union, or any citizen of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution__**.” 5 This comment by Bingham is no doubt meant to be politically assuring because the language speaks of empowering Congress with the power to directly legislate over life, liberty, and property of persons within a State, which could, and did, be seen as ousting the authority of the States over such matters. Bingham's final version of the Fourteenth Amendment that was adopted read: > 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. Bingham did not point out any fundamental differences between the two versions in his last speech (May 10, 1866) on the Amendment before going before State legislatures for approval. However, he did draw attention to the difference five years later by arguing the adopted version //“differs in this: that it is, as it now stands in the Constitution, more comprehensive than as it was first proposed and reported in February, 1866. It embraces all and more than did the February proposition.//” 6 He goes on to suggests it is //“more comprehensive//” by the addition of the words “No State shall” because in Barron vs. The Mayor, &c., 7 Peters 250, held, //“Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention.//” Acting on this suggestion found in Barron, Bingham says: > I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution. . . In other words, the only difference between the two versions is the later was made more clear in making the privileges and immunities of United States citizens and due process of law a limitation on the power of the States because his original version was not all the clear on the subject. He confirms this in House Report No. 22 that will be discussed shortly.  The constitutions two privileges and immunities clauses (Article IV and Fourteenth Amendment) provides that citizens of every State shall be entitled to the same fundamental rights of citizenship (due process, make and enforce contracts, hold property, etc.) as enjoyed by the citizens of the State for which they have ventured. The only difference between the two clauses is under Article IV one had to first be a citizen of some State whereas under the Fourteenth Amendment the privileges and immunities of US citizens follows them regardless if they are a citizen of a State or not. The privileges and immunities under the Fourteenth Amendment were added solely for enforcement purposes and not for the purpose of adding any new rights that citizens already had under the original Constitution ([|See Bingham's House Report No. 22 Here]). Bingham often spoke of both the privileges and immunities of United States citizens and due process as the a “bill of rights” when referring to them individually in his speeches. Example of Bingham’s bill of rights remarks on March 9, 1866: > But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, **__the enforcement of the bill of rights, touching the life, liberty, and property of every citizen__** of the republic within every organized State of the Union… 7 James F. Wilson of Iowa, Chairman of the House Judiciary Committee at the time, responded to Bingham's proposition to enforce the bill of rights through amendment of the Constitution by saying: //“I find in the bill of rights which the gentleman [Bingham] desires to have enforced by an amendment to the Constitution that 'no person shall be deprived of life, liberty, or property without due process of law.'//” 8 Referring to Article IV, Section II as a bill of rights: “Gentleman admit the force of the provisions in the bill of rights, //that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States//...” 9 So his references to the bill of rights should never be construed to suggest the entire first eight amendments. When speaking of privileges or immunities of United States citizens he made clear this had no application towards citizens under their own State laws and Constitutions before and after the adoption of the Amendment: > When you come to weigh these words, “equal and exact justice to all men” go read, if you please, the words of the Constitution itself: The citizens of each State (being ipso facto Citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” **This guarantee is of the privileges and immunities of citizens of the United States in, __//not of//__, the several States.** 10 Bingham addressing Rep. Robert S. Hale (NY): “I respectfully ask him to inform us whence he derives the authority for supposing, if he does suppose, __//that any State has the right to deny to a **citizen of any other State**//__ any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?” 11 Bingham on January 9, 1866: “I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic __when he may hereafter come within her jurisdiction__.” 12 It is interesting to point out all of the State wrongs Bingham highlighted to be cured under the Fourteenth Amendment dealt solely with State treatment of citizens of other States and never State acts against a States own resident citizens. For example, Bingham several times scolded Georgia over a 33 year-old incident which he claims the State violated citizens First Amendment (Georgia's version of the First Amendment) rights when the State sentenced them to penitentiary for teaching their fellow man (Indians) the gospel. He of course was exaggerating the facts of the event and the citizens involved were not Georgia citizens but South Carolina missionaries. Georgia had a law that prevented citizens from residing among the Cherokee Indians on Indian land and asked the missionaries to leave. The missionaries were jailed after refusing, however, they were allowed to be released whenever they provided assurances they would no longer violate the law and return to South Carolina. Bingham made a seemingly confusing statement several years after the adoption of the amendment which in recent times has gathered much attention in supporting the theory the Fourteenth Amendment intended to make the entire first Eight Amendments a limitation upon the States in regards to their own resident citizens. He is often quoted as saying in an highly partisan speech on March 31, 1871: > Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first Eight Amendments to the Constitution of the United States ... These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. 13 Note that Bingham makes a clear distinction between State citizens and citizens of the United States. Additionally, moments later, Bingham goes on to add in this same speech that it had always been //“decided, **and rightfully**, that these amendments, defining and protecting the rights of men and citizens, were only limits on the power of Congress, not on the power of the States.//” It was Bingham's theory (Webster's 'injunctions and prohibitions') 14 that the first Eight Amendments do indeed apply against the executive or judicial officers of a State through their oath to recognize all the securities recognized under the federal Constitution in terms of citizens of other States within a jurisdiction of some State. Bingham felt this oath might be enforced under the Fourteenth Amendment - which enforcement powers was lacking under the original Constitution. It is a weak theory because it suggests officers of a State are required to recognize limitations only upon Congress. Senator Jacob M. Howard suggested in 1866 nearly the same thing Bingham had in March of 1871 when introducing the Fourteenth Amendment in the Senate. Speaking of the first Eight Amendments, Howard says, “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these __//should//__ be added the personal rights guarantied and secured by the first eight amendments of the Constitution.” 15 In the same speech, Howard says, “I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, //**are secured to the citizen solely as a citizen of the United States and as a party in their courts.**//” Notice Howard says //“solely as a citizen of the United States and as a party in their courts,”// and not between citizens and their own State, where they come under their own constitutions and bill of rights but is intended for States to //"respect these great fundamental guarantees"// of United States citizens and not between citizens and their own State of residence. This is a significant difference from saying between a State and its own citizens. Perhaps this is what Bingham had been saying as well. Anyway, if these remarks by Bingham were to be taken literally to mean citizens of their own State would create an enormous contradiction with his official House Judiciary Committee supported statements issued two months earlier over the proper interpretation of the privileges and immunities under the Fourteenth Amendment. He personally wrote in a House Report that the Fourteenth Amendment //“__did not add to the privileges or immunities__”// of U.S. citizens. 16 The question begs then, if the Fourteenth Amendment had not added anything new to the privileges or immunities of United States citizens – and the federal bill of rights **__rightfully__** never applied to the States to begin with – how then did the first Eight Amendments suddenly become a limit against the power of the States __against their own citizens__ through the privileges or immunities of United States citizens on March 31, 1871? Another factual problem Bingham's above remarks would encounter - if taken literally - is the fact there was no bill of rights when Article IV, Sec. II was adopted, and no framer, court or scholars had ever advanced any theory that said the privileges or immunities of State citizens included the newly added first Eight Amendments. In his last speech on the Fourteenth Amendment (May 10, 1866) before it went before the House for final approval before being submitted to the States for ratification, he spoke of what privileges or immunities citizens of the United States were entitled to - never suggesting State citizens were entitled to any of the protections under the first Eight Amendments of the U.S. Constitution - except due process in life, liberty and property. In any event, Bingham made the issue of incorporation of the entire bill of rights through the privileges and immunities a moot possibility on March 31, 1871 because he said he was not speaking of any privileges or immunities citizens of a State may claim with their own State. Moreover, he had made it clear in H.R. No. 22 that the Fourteenth Amendment //“did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.//” It is no wonder the Slaughterhouse court was forced to conclude the following: “It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.” It's interesting to point that Congress did indeed define the privileges and immunities of citizens under //“**An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication,**//” aka, Civil Rights Bill of 1866, and it said nothing about any of the first Eight Amendments: > All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Note the above bill does not say “protect some of the privileges and immunities of citizens of the United States,” but to “protect __all__ the privileges and immunities.” Bingham's right-hand man, Samuel Shellabarger of Ohio, made clear to the House that enforcement of the privileges and immunities of United States citizens had nothing to do with a States own citizens: > It protects no one except such as seek to or are attempting to go either temporarily or for abode __from their own State into some other__. It does not attempt to enforce the enjoyment of the rights of a citizen within his own State against the wrongs of his fellow-citizens or his own State after the injured party has become or when he is a citizen of the State where the injury is done. 17 It was the above portion of the Civil Rights Bill that resulted in Bingham urging for the addition of the privileges and immunities into the Fourteenth Amendment because he felt the Constitution did not give Congress any more authority to enforce Article IV, Sec. II then it did the federal bill of rights. It would had been an rather “barren discussion” in suggesting provisions of the Constitution that everyone agreed were not a limitation upon the powers of the States in regards to their own resident citizens to begin with, which the language chosen for the amendment did not alter, suddenly became a limitation against the power of the States in regards to States own resident citizens. If there was any ambiguity to the meaning Bingham attached to the privileges and immunities of United States citizens, he clearly removed all ambiguity on May 14, 1868 by specifically declaring the language to be the same limitation upon the States as was placed upon Missouri in 1821: > That provision, gentlemen will remember, was a limitation imposed upon the State of Missouri in the very words of the Constitution itself, to wit: that its constitution never should be so construed, and never should be so enforced as to deprive any citizen of the United States of the rights and privileges of a citizen of the United States within the limits of that State. __The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States.__ 18 He is referring to Six United States Statutes-at-Large, 645, which stipulated the Constitution of Missouri should //“never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which __any citizen of either of the States__ of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States.”// This compromise was the result of Missouri's constitutional provision that read: “//It shall be their [legislature] duty, as soon as may be, to pass such laws as may be necessary, to prevent free negroes and mulattoes from coming to, and settling in this State, under any pretext whatsoever.//” Many believed that free negroes were __citizens__ and any act to prevent them from coming or settling within a State was unconstitutional under Article IV, Sec. II. Bingham, like most in Congress, recognized States may ban aliens from coming or residing within their limits but had no authority to ban citizens of other States unless they were either convicted felons or were at risk of becoming a public charge. There was a dispute whether a State could ban Chinese labor who were employed to install railroad tracks (one of the reasons railroads were active in funding political campaigns). Anyway, Bingham again appears to have removed all doubt to exactly what the privileges and immunities would encompass during the debates for the adoption of the Fourteenth Amendment when he said on February 28, 1866: > The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. __It is to secure to the citizens of each State all the privileges and immunities of **citizens of the United States** in the several States__. If the State laws do not //__interfere__//, those immunities follow under the Constitution. 19 Notice Bingham makes clear immunities of citizens of the United States do not shield them against the laws of a State. Bingham asks on February 28, 1866; “Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States?” 20 Following same construction along the lines of Joseph Story in his Commentaries in that the phrase only applied to rights in which an out–of–state citizen would be entitled under like circumstances under State law for its own resident citizens. Again, he asks in same speech, //“It seems to me equally clear if you intend to have these thirty–six States one under our Constitution, if you intend every citizen of every State shall in the hereafter have immunities and privileges of citizens in the several States, you must amend the Constitution.”// 21 In other words, a citizen can only claim privileges or immunities upon removal from their own resident State into another. Bingham goes on to essentially argue that if the rebels have any say, they might well consider laws ling out those who had aided the Union during the war, leaving them less secured in person under the laws of any one of the former rebel States. Consider also that Bingham considered no other guarantee more sacred then Art. IV Sec. II: //“**This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that great instrument.**//” 22 Senate Judiciary Committee chairman, Lyman Trumbull, concluded in April of 1871 that the Fourteenth’s privileges and immunities clause was merely a //“repetition of a provision in the Constitution as it before existed,//” and that the //“fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were.//” 23 Sen. George Edmunds, responding to Trumbull’s above remarks, suggested that the new “language changes entirely in the description of the class of persons who are entitled to protection.” The old clause, he continues, “provided that the citizens of each State, as citizens of a State, should be entitled to the rights of citizenship in any other State to which they might go. The new [fourteenth] amendment provided that the citizens of any particular State or not, shall have universal citizenship in the United States.” Sen. Trumbull responded, “That is true; but it is limited in another respect to an infringement by law.” 24 Edmunds simply points out the obvious: No longer does a person must be considered a citizen of some specific State but may be a stateless citizen - which exactly defines newly emancipated slaves at the time. So, while emancipated slaves were not a citizen of any one State, they now could be protected from those State laws that attempted to treat them as non-citizens (denial of due process) in terms of privileges or immunities. Both the House and Senate judiciary had released official statements regarding the proper interpretation of the privileges and immunities that could be used to establish legislative precedent. On January 30, 1871, the House Judiciary Committee, lead by John Bingham, released a House Report No. 22, authored by Bingham himself, in response to a petition by Mrs. Victoria C. Woodhull and interpreted the Fourteenth’s privileges and immunities this way: > The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States __other than those privileges and immunities embraced in the original text of the Constitution, article four, section two__. The Fourteenth Amendment, it is believed, __did not add to the privileges or immunities before mentioned__, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, __and it was apprehended that the same might be held of the provision of the second section, fourth article.__ 25 The committee report further added the “**words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the __original__ Constitution.**” In other words, citizens of the United States under the Fourteenth Amendment did not, by implication or modification, refer to resident citizens within their own State. The first insight Bingham provides in his report is the fact the privileges and immunities embraced no other privileges and immunities then those originally embraced by Art. IV, Sec. II. This effectively eliminates any possibility the framers intended to incorporate any of the first Eight Amendments through the privileges or immunities language under the Fourteenth Amendment because the first Eight Amendments were never considered to be a privilege or immunity of citizens of the United States within State jurisdiction. The report further settles the question of whether it was the intent to reverse the holding in Barron v. Baltimore. Equally important, Bingham reveals why he imported Art. IV, Sec. II to begin with - to prevent a similar judicial fate as with the bill of rights in Barron v. Baltimore. It is worth bearing in mind that the civil rights act of 1866 was premised on Art. IV, Sec. II, and not the bill of rights. If a State might had challenged the federal government’s civil rights act, the court could hold Art. IV, Sec. II was beyond legislative acts of Congress to enforce. The New York Times on November 15, 1866, explained the proposed Privileges and Immunities Clause under the Fourteenth Amendment to their readers this way: > We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States." > > We have seen, in the first number, what privileges and immunities were intended. The same authorities have held that the negro of African descent was not a citizen within the meaning of the term, as used in this and other articles of the Constitution; that he was not one of the "peoples" who ordained that sacred charter; that as a slave he was only three-fifth of a "number," but as a free man he was a whole number to be counted for representation, and a whole "person," who might be held to involuntary "service," and reclaimed in any State to which he might escape. The free colored man could have no protection in any slave State during the existence of the relation of master and slave. > > He could not change his residence, nor travel at pleasure; he could neither buy, sell nor hold property; he was liable to be enslaved under various circumstances, and such laws were often enforced. Those who contend for "the Constitution as it is and the Union as it was," affect to acknowledge the freedom of the colored people; but, by a series of unfriendly legislation, __many of the states construe that freedom to mean no acknowledgment of citizenship and the enjoyment of very few rights.__ Without enumerating the disgraceful particulars of legislation, it must be apparent to every candid mind, that the Constitution must be so amended as to place restrictions upon the States, or else the Negro must be virtually reenslaved.  To understand the sought purpuse behind the insertion of the Equal Protection of the laws one must understand Radical Republicans objection to the “Black Codes” of 1865-1866. Black Codes were “criminal codes” that singled out only people of color for punishment. On the other hand, segregation laws was not objectionable to many of the supporters of the Fourteenth Amendment as a matter of law, with even Bingham finding no legal objection to his own States segregation policies post Fourteenth Amendment, but criminal laws that singled out blacks for punishment was very objectionable. Recall earlier that Bingham suggested every word found in the Fourteenth Amendment could be found in the Constitution, leaving one to wonder where the words “equal protection” could be discovered. Bingham reveled the answer this way: The Magna Charta “**//gave the protection of the laws only to freemen//**” while the Fifth Amendment used “more comprehensive words, ‘no person’” shall be deprived of life, liberty or property without due process of law. And thus,//“**the people by their Constitution declared the equality of all men, and by the express limitation forbade the Government of the United States from making any discrimination.**”// 26 This means not only the laws of due process cannot be denied, but due process must also be equally administered, to wit: //“That all citizens shall be forever equal, subject to like penalties for like crimes and no other.//” In his March 31, 1871 speech Bingham says the equal protection of the laws means//“**no State should deny to any such person any of the rights which it guaranties to all men.**//” 27 What universal right do States guarantee to all men post Fourteenth Amendment? Right to due process in the administration of justice, of course. Senator Jacob M. Howard described the effect of the Equal Protection of the laws as equal measures of justice before the courts: > This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it, the poor privilege of the equal protection of the law? Ought not the time to be now passed when __one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out__ to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body? 28 Because the phrase deals with the administration of laws of due process in the course of administering justice, explains why Bingham never found it to have broad application outside of the administration of justice – such as school segregation (Bingham found Ohio segregation policies not applicable to the Fourteenth’s equal protection clause) or political rights (why we have a 15th and 19th Amendment), and municipal taxes. In February of 1870 Sen. Howard apparently could find no authority under the recently adopted 14th Amendment (equal protection clause) to impose upon the State of Mississippi the following conditions: //“That the constitution of Mississippi shall never be so amended or changed as to deprive any citizens, or class of citizens of the United States, of the school rights and privileges secured by the constitution of said state.//” Instead, he defended the constitutionality of the bill as “preserving and upholding a republican form of government” under the clause that says the “United States shall guarantee to every State in this Union a Republican Form of Government.”  29 In responding to Rep. Hale of New York, Bingham made it perfectly clear what phrase “equal protection” meant under the Fourteenth: “It confers upon Congress power to see to it that the protection given by the laws of the States __shall be equal //in respect to life and liberty and property to all persons//.__” When asked to point out the clause that contained this doctrine, Bingham replied: “The words ‘**equal protection**’ contain it, and nothing else.” 30 Note that he says those laws in //“respect to life and liberty and property”// – which confirms he is referring to the administration of justice. How can we be sure? Well, that is all it ever meant in any of his speeches when speaking of the Fifth Amendment. The following example comments will demonstrate this fact: > If this is to be the language of the bill (civil rights), by enacting it are we not committing the terrible enormity of distinguishing here in the __laws in respect to life, liberty, and property__ between the citizen and stranger within your gates? Do we thereby declare the States may discriminate __in the administration of justice__ for the protection of life against the stranger irrespectable of race or color? 31 During his March 31, 1871 speech, Bingham described the words //equal protection of the laws//” this way: > The gentleman inquires, what does this [equal protection] mean? > > The gentleman, if he had consulted Magna Charta, which England's brilliant and profound constitutional historian, [Henry] Hallam, has well said is the keystone of English liberty, fortieth, these words: “We will sell to no man, we will not deny or delay to any man right or Justice.” After all the past, is it needful to say what it means to deny right or justice to any man? 32 Again, in the same speech, and after quoting the Fourteenth's entire first section, Bingham declares, “These are the words of Magna Charta, we will not deny to any man right or justice.” These words says Sir Edward Coke, “are spoken in the person of the King, who in judgment of law, in all his courts of justice is present, and repeating these words.” The words “We will sell to no man” were intended to abolish the fines demanded by King John in order to obtain justice. “Will not deny” referred to the stopping of suits and the denial of writs. “Delay to any man” meant the delays caused either by the counter-fines of defendants, or by the prerogative of the King. Boyd Barrington observed that the “custom of bringing presents to the king and paying him for the adjudication of cases undetermined before that court was one of the reasons that led to the insertion of the 40th chapter.” In other words, equal protection of the laws insure equal right to the laws of due process and impartially administered before the courts of justice. New York's Constitution embodied this same principle of equal protection of the laws to all persons: > That neither justice nor right shall be sold to **any person** nor denied nor deferred and that writs and process shall be granted freely and without delay to all persons requiring the same, and nothing from henceforth shall be paid or taken for any writ or process but the accustomed fee for writing and for the seal of the same writ or process; and all fines, duties, and impositions whatsoever heretofore taken or demanded under what name or description so ever, for or upon granting any writs, inquests, commissions, or process to suitors in their causes, shall be and hereby are abolished. Hallam referred to Chapters 39 and 40 as one of the essential clauses of the Great Charter, being those which **//“protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation.”//** As been pointed out earlier, Bingham’s initial language of the Fourteenth Amendment (February 1866) did not include the words “due process,” yet he described the proposed amendment as securing due process in respects to life, liberty and property. Sample passage from Bingham describing his proposed amendment securing due process even though the words “due process” was excluded: > Gentleman admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States, //**and that no person shall be deprived of life liberty, or property without due process**// of law; but they say, “//__We are opposed to its enforcement by act of Congress under an amended Constitution, as proposed.__//” 33 Perhaps there was no clearer statement by Bingham that linked equal protection of the laws with due process then these remarks on February 28, 1866: > Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law––law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal and exact justice... 34 Following the civil war, rebel States were required to adopt new State constitutions that conformed with the provisions of the Fourteenth Amendment, and required approval of Congress. Mississippi’s Constitution conformed to the requirements of the Fourteenth Amendment’s first section with the following provisions: > Sec. II8. All Courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. The inclusion of the words equal protection along with the words life, liberty and property provided protection for all persons from arbitrary taking of life, imprisonment or confiscation of property. When Bingham spoke of States denying citizens freedom of speech, or of the press, or to sit on juries, etc., his beef was with the lack of equal protection provided by law to all in the course of administering justice. Under black codes blacks could not sue, give evidence, be witnesses, received harsher degree of punishment, etc. In a December 20, 1870 speech, Bingham pointed out that no State can deny the equal protection, “Not of its laws, but of the laws.” 35 What is Bingham talking about? He is talking about the law of the land - laws guaranteed to all for the protection of life, liberty and property from arbitrary government action. In his March 31, 1871 speech he says just that: > Surely the gentleman (Farnsworth) then supposed the words “equal protection of the laws” were more than a glittering generality; that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the __//supreme law of the land//__, the Constitution of the United States. Because the Fourteenth Amendment specifically made Fifth Amendments due process provision a limitation against State denial, in return made it part of the law of the land in which States may not deny, but must also equally administer. And finally, Bingham removed all doubt whether the Equal Protection of the Laws dealt solely with the administration of justice in these December 20, 1870 remarks: > What did this great people proclaim by the adoption of that [fourteenth] amendment, with one unbroken voice, from Maine to California and to Oregon? It was this: that neither the Carolinas, nor Ohio, nor New York, nor Pennsylvania, nor any other State in this Union, shall **__deny to the chiefest offender__** hitherto against the rights of this people the equal protection of the laws, and especially of the Constitution and of all laws made in pursuance of it; equal protection with the first man in the Republic. In other words, it places Davis and Toombs and Slidell and Benjamin, who were of the architects of that atrocious revolt (civil war), under like protection of the law with Grant and Sherman and Sheridan, wherever they might be in the Republic, thereby proclaiming them citizens of the United States, and as such by the people’s decree, which no man shall question, entitled to the equal protection of the laws, and that no State should deny to any of them the equal protection of the laws. … They are thereby assured in the general rights of citizens of the United States, and enabled in everyplace proudly and truthfully to exclaim, “I, too, **though the greatest of offenders against its laws**, am a citizen of the Republic.” 36  The incorporation of the Fifth’s due process clause had little effect on the States because it was merely seen as a safeguard from arbitrary denial of life, liberty, or property outside the sanction of law and did not act to oust the States from continuing to administer justice as they had always under their own Constitution and laws. Because due process deals only with the administration of justice, limits its application. Bingham never made it a secret that the words due process of law were the words of the 39th Chapter of the Magna Charta. In the following speech he clearly links due process of the law with Chapter 39 of the Magna Charta: > [The] Magna Charta of England, to which he referred, and the Magna Charta of the United States of America, as written in your Constitution in words so plain "that the wayfaring man cannot err therein." The gentleman read from the Magna Charta of England, that "no freeman shall be taken or disseized," &c., "but by the judgment of his peers and the law of the land;" forgetful of the fact that the words "no freeman" were words of limitation, and limited this great charter at the time it was adopted to one half the population of England, and forgetful also that these words of limitation were swept away by the Constitution of the United States, in which it is declared that "no person shall be deprived of life, liberty, or property without due process of law." By that great law of ours it is not to be inquired whether a man is "free" by the laws of England; it is only to be inquired is he a man, and therefore free by the law of that creative energy which breathed into his nostrils the breath of life, and he became a living soul, endowed with the rights of life and liberty. 37 Under the Magna Charta we find “legal judgment of his peers or the law of the land,” later extended under 28 Edward III in 1354 to read: “//No man, of whatever estate or condition, shall be put out from land or tenement, taken or imprisoned, disinherited, or put to death, without being brought to answer by __due process of law__.//” The words “law of the land” and “due process of law” have long been recognized to be synonymous. It is easy understand the historical genesis behind the words life, liberty and property. The most significant protection offered from these words was security from the king's arbitrary will, that execution should be preceded by judgment of peers according to the law of the land previously made. It has long been customary under the general law of due process to require a trial by jury in cases of capital punishment, to be represented by a lawyer, not having to be a witness against one self, to call witnesses, etc. The right to personal liberty, or freedom of person, means freedom from bodily restraint either by imprisonment or detention without just cause under the general law of the land of the State. Thomas Jefferson remarked that “[t]here are certain principles in which all agree, and which all cherish as vitally essential to the protection of the life, liberty, property, and safety of the citizen ... Freedom of person (liberty), securing every one from imprisonment or other bodily restraint but by the laws of the land. This is effected by the well-know law of habeas corpus.” (Thomas Jefferson to A. Coray, 1823, ME 15:489) In 1868, the same Congress who adopted the Fourteenth Amendment passed an act entitled “Rights of American Citizens in Foreign States” in the event any citizen was “unjustly deprived of his [personal] **//liberty//** by or under the authority of any foreign government.” Under the act, the President was required to demand the “reasons for such **//imprisonment//**, and if it appears to be wrongful, and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen.” Hence, the word “liberty” was understood to only mean freedom from physical restraint and not some broad declaration of multiple liberties recognized elsewhere, such as freedom of speech. Personal security against unlawful detention is protected by the great //writ of habeas corpus//. The courts have always recognized //habeas corpus// as security against unlawful physical detentions and not against disagreeable public laws. In other words, no one resorts to //habeas corpus// when they think their liberty of speech might somehow be improperly infringed by some public act. The word //property// is the American term for //freehold// under the Charta and essentially mean chattels or interests in land. In April of 1872 Bingham pointed out that seizure of property under due process does not require the process of a jury: > Gentlemen will bear in mind that years ago a question arose quite kindred to that now raised here as to the effect and meaning of the term "due process of law" as used in the fifth article of amendments to the Constitution, which was passed upon in the Supreme Court of the United States. I refer to the case of Murray vs. The Hoboken Land and Improvement Co., 18 Howard, 280. In that case land was seized on a Treasury warrant issued to the United States marshal, and sold. The question raised and decided in the case was whether upon a warrant issued by the Treasury land could be seized and sold by the marshal without the intervention of a jury. The validity of the act of Congress authorizing such seizure and sale was sustained by the Supreme Court and stands to-day unchallenged, declaring that the phrase "due process of law" means the law of the land. 38 In other words, an act of the legislature sanctioning seizure of land without trial //is// 'due process.' It would had only been unconstitutional if there had been no law in place for the seizure of land without trial by jury. Bingham's above remarks were confirmed in Walker v. Soubinet, 92 United States Reports: > That a trial by jury in suits at common law pending in the State Courts is not a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State Courts affecting the property of persons must be by jury. __This requirement of the Constitution is met if the trial is according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land. This process of the State is regulated by the law of the State.__ Lyman Trumbull, speaking of the Fourteenth Amendment’s due process, said: “There is no change in that respect so far as the States are concerned, and the Federal Government cannot interfere with the States so long as they do not deprive some person of life, liberty, or property without due process of law.” 39  One cannot fully understand the function of the Fourteenth Amendments first section without first understanding its sole purpose was to give constitutional effect to “An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication,” aka Civil Rights Bill of 1866. Bingham argued strenuously that the Constitution gave Congress no power to enforce Article IV, Sec. II, and thus, why the Fourteenth's first section was adopted. Bingham declared from the start that it was his intention to codify provisions of the Civil Rights Bill of 1866 under the U.S. Constitution. Bingham specifically singled out this provision of the Civil Rights Bill: > And such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, **__and to full and equal benefit of all laws and proceedings for the security of person and property__**, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. After reciting the above, Bingham then explains the above will be the basis for his proposed amendment to the Constitution: > I say, with all my heart, that that should be the law of every State, by the voluntary act of every State. The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. __I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future.__ 40 If you ever had wondered what exactly Bingham intended to accomplish with the language he had chosen, well now you know. Let us now consider for a moment what this language Bingham singled out means. Therefore, it should be of no surprise to learn when Rep. Thaddeus Stevens (chairman of the Reconstruction Committee) and Sen. Jacob Howard (in the Senate) introduced the final form of the Fourteenth Amendment out of committee in May of 1866, both spoke of the language in terms of accomplishing the same goals under their Civil Rights Bill. For example, Stevens said the affect of the amendment when introducing it to the House on May 8, 1866: “Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. ... Now different degrees of punishment are inflicted, not on the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men.” 41 Sen. Lyman Trumbull, Senate Judiciary Committee chairperson, described the civil rights bill this way: “This bill neither confers nor abridges the rights of any one, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishments. Each State, so that it does not abridge the great fundamental rights belonging under the Constitution (Art. IV, Sec. II), to all citizens, may grant or withhold such civil rights as it pleases; all that is required is that, in this respect, its laws shall be impartial.” 42 Bingham’s fellow colleague from Ohio, Samuel Shellabarger, said of the privileges and immunities section of the civil rights bill, which he had much involvement in drafting: > It does not prohibit you from discriminating, between citizens of the same race, or of different races, as to what their rights to testify, to inherit, etc., shall be. But if you discriminate, it must not be “on account of race, color, or former condition of slavery. That is all. If you permit a white man as an infidel to testify, so you must a colored infidel. Self–evidently this is the whole effect of this first section. It secures not to all citizens, but to all races as races who are citizens––**equality of protection** in these enumerated civil rights which the States may deem proper to confer upon any races. 43 James F. Wilson perhaps provided the most thorough and qualified opinion in regards to the civil rights bill: > It [Civil Rights Bill of 1866] provides for the equality of citizens of the United States in the enjoyment of "civil rights and immunities." What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. > > Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government (protection against a monarchy). Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. > > The definition given to the term "civil rights" in Bouvier's Law Dictionary is very concise, and is supported by the best authority. It is this: "Civil rights are those which have no relation to the establishment, support, or management of government." From this it is easy to gather an understanding that civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic. > > But what of the term immunities? What is an immunity? Simply "freedom or exemption from obligation;" an immunity is "a right of exemption only," as "an exemption from serving in an office, or performing duties which the law generally requires other citizens to perform. This is all that is intended by the word "immunities" as used in this bill. > > It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains, and penalties from which other citizens are exempted. Whatever exemptions there may be shall apply to all citizens alike. 44 Since the entire purpose behind the Fourteenth Amendment's first section was to give effect to the Civil Rights Bill of 1866, the enforcement scheme was identical. Sen. Trumbull explains what would trigger enforcement: > If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have any thing to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against, __under color of State laws, because he is colored, then it becomes necessary to interfere for his protection.__ 45 Like under the Civil Rights Bill of 1866, the amendment's first section //“does not reach mere private wrongs, but only those done under color of State authority,//” said Bingham’s close colleague, Samuel Shellabarger. Covering much of the same points as Bingham had, Mr. Shellabarger tells us the effect of the first section of the Fourteenth Amendment is a //“**negation upon the power of the States, and that as the fifth section of that amendment only authorizes Congress to enforce the provisions thereof, therefore Congress has no power by direct legislation to secure the privileges and immunities of citizenship, because the provision in each section is in the form of a mere negation.**//” 46 Bingham speaking of the similarity of enforcing other constitutional limitations placed upon the States, said: > There are other negative provisions in the Constitution of the United States; for example, the express negative provision that no State shall pass any law impairing the obligation of contracts. By virtue of your judiciary act, as it has been in force from the foundation of the Government to this day, that limitation upon the power of the States is uniform, and whenever or where ever any State has undertaken by __legislative enactment__ or by __constitutional provision__, if you please—I care not which—to impair the obligation of contracts, that wrong has, by the operation of your law, been righted. 47 In his last speech before the proposed amendment was offered to the States for ratification, Bingham said the “great want of the citizen and stranger, protection by national law from __//unconstitutional State enactments//__, is supplied by the first section of this amendment. That is the extent that it hath, no more.” On February 15, 1871, Bingham said of the purpose of Section Five was to give Congress the power to //“ **correct and restrain by law the** __**abuses of State authority**.__//” 48 Sen. Trumbull said section five would provide for the following scenario: > Now, suppose in the cases arising under the fourteenth amendment that a State attempts to deprive a person of life, liberty, or property without due process of law, or suppose that a State denies to a person within its jurisdiction the equal protection of the laws, then the Federal Government has a right to set aside this action of the State authorities and see to it that the person is protected in his life and his liberty and his property, unless they are taken from him by due process of law, and that he receives the equal protection of the laws, __just as it furnished the means to give him the enforcement of his contract under the old Constitution.__ 49 Congressional legislation to enforce the first section was intended along the same lines of restraining State authority as done with the State of Missouri, e.g., //No State Constitution shall “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States.” (Missouri Resolution.)// Both due process of the law and the equal protection of the laws are direct imports of the Magna Charta Chapters 39 and 40 which Bingham pointed out in the words of Hallam, protects the **//“personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation.”//** Due process of the law disables the State executive officer and State courts from denying State laws of due process before tribunals of justice to any class of persons. The equal protection of the laws disable legislatures and judges from unequally administering those rights of justice the State guarantees to all men (everyone has a right to process of law before being put to death, property confiscated or imprisoned). Bingham had said,//“// in the event of the adoption of this amendment, if they [States officials] conspire together to enact laws refusing equal protection to life, liberty, or property, the __Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow-men.__” 50 In his March 31, 1871 speech, Bingham stated the “United States punishes men, not States, for a violation of its law.” 51 The constitutional question in regards to due process of the laws isn't whether State laws of due process are fair or just - or even applied correctly at times - but whether those laws, whatever they might be, have been //denied// by some affirmative act on part of a State under State authority. In other words, the key operational word is __denial__ by State authority. Additionally, it could be said the Thirty–Ninth Congress had no desire to make any limitations found in the first section a limitation in anyway against the municipal governments within the States. More than two–thirds of the House angrily voted down the Sherman Amendment of 1871 that had attempted to interfere with local police powers through Fourteenth enforcement legislation. In debating the enforcement of the Fourteenth Amendment, Bingham cites a New York court ruling (Darlington vs. The Mayor, etc., of New York) in arguing against the power of Congress to hold municipal governments accountable under the amendment. Bingham said this ruling //“shows that a county, being the creature of the State and an integral part of it, can in no case be made responsible for mob violence save by force of the positive law of the State creating it.//” The court in Barbier v. Connolly, ruled the Fourteenth Amendment in no way interfered with the internal police powers under State governments. Bingham essentially confirmed the same thing to Governor Rutherford Hayes. (Need citation for Hayes letter)  The Fourteenth Amendment's language has long been the source of wild imaginative construction by those who first read its words. Following its adoption woman were sure it meant the right to suffrage; a woman in Chicago argued it admitted her to the bar while a black man argued he was now entitled to the same wages as the highest paid white person. Butchers in New Orleans asserted that it gave them the right to land and slaughter animals in any part of that city they please. Later in the 20th century the court started to assume some of the first Eight Amendments might be made a limitation against the States own resident citizens giving Congress and Federal courts expanded powers over judicial proceedings and laws within the States. Such nonsense ignores the distinction placed upon citizens of the United States and citizens of a State. It also ignores the fact even the most fanatic radicals did not view any of the first Eight Amendments as a limitation against the power of the States in regards to their own resident citizens after the Fourteenth had been adopted. Between 1871 and 1890 there were some Seven attempts to amend the Constitution in prohibiting the States from respecting religion in one form or another. For example: In December of 1871, Sen. Stewart proposed a Sixteenth Amendment to the Constitution that would have directly prohibited the States in “giving aid to sectarian schools.” In an 1875 State of the Union message, President Grant asked Congress to propose another amendment to the U.S. Constitution that would prohibit the States in “granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any __**religious sect**__ or denomination...” It was this presidential recommendation that lead to the proposed Blaine Amendment, which attempted to make word-for-word the Establishment Clause under the First Amendment a direct prohibition against the power of the States. In 1888 Sen. Blair offered to amend the Constitution that stipulated that no State should maintain an establishment of religion, and prevented any appropriation for sectarian schools. Such amendments would not have been necessary if President Grant (the darling among radicals) and Congress understood the Fourteenth Amendment to have directly imposed upon the States and resident citizens therein the entire federal bill of rights. In 1869 after the Fourteenth Amendment had become officially adopted, Chief Justice Chase denied a writ of error in Twitchell v. Commonwealth on the grounds the 5th and 6th amendments did not apply to States, only the federal government. What made this case very significant was the fact Twitchell’s lawyer, William Wheeler Hubbell, had advocated in 1863 for a constitutional amendment to overrule Barron and to make the Bill of Rights binding on the States. The fact he did not argue the Fourteenth Amendment made the 5th and 6th amendments applicable to the States speaks volumes. Rabid Radicals years later assumed they could legislate new laws over the private affairs of the people, and in one last dying act from their deathbed before being driven //en masse// from power in the fall elections, passed the Civil Rights Act of 1875. The Supreme Court in return rightfully ruled that act to be unconstitutional in exceeding the authority granted in enforcing a direct prohibition of State power. Of the forty-seven sections of civil rights legislation passed by radicals, forty-two had either been repealed directly, or declared invalid by the Court. With each Supreme Court rejection of radical Fourteenth Amendment legislation came more and more public relief and celebration. Newspapers both from North and South reaped praise on the Supreme Court while denouncing Radical Republicans. The spirit of the times perhaps was best captured by the New York Tribune, March 29, 1876: > [The] greedy and malignant partisanship began to demand, as necessary to the public welfare, measures which were only needful for the maintenance of unworthy or corrupt men in power. Of these measures, the [Fourteenth Amendment] Enforcement Act was one of the most odious. Under it, shameful abuses have been perpetrated ... It will now lie dead upon the statute book, to remind future generations of Americans that no conceivable abuse of the Constitution by one party can justify disregard of the Constitution by the other. It is interesting to point out here is that when the Civil Rights Act of 1875 was passed, many radicals did not want it to be enforced right away but Democrats did. Essentially, radicals committed suicide as rural farmers in the south who had supported them became disgusted and fled to the Democratic party. Even black leaders begin to openly question the wisdom of radical legislation as some saw radicals leading the country into another civil war by inciting whites everywhere with legally unsound legislation. William W. Davis in his Studies on Southern History and Politics (1914), wrote of reconstruction radicals: “[T]hey were in fact out of joint with the times. They did not square with public consciousness, either North or South. They belonged logically to a more arbitrary period. They fitted a condition of war, not of peace, and suggested autocracy, rather than a democracy.” The reader might feel the historical record is rather absurd in regards to distinguishing citizens of the United States with citizens of a State. However, it really does make sense when one considers one important historical backdrop of the time: Thousands of displaced black Americans from the war returning to the south who could claim no citizenship from any State. Article four, section two of the U.S. Constitution only applied to citizens who were a citizen of one State within another State. Newly emancipated slaves possessed only general national citizenship, and it was feared by some (Bingham and most Democrats) that Congress possessed no power to protect them under Article IV through their Civil Rights Act of 1866 within former rebel States. Citizens of a State had the right to go before the courts of justice to seek redress for wrongs, sue, enforce contracts, etc., within any other State. These newly emancipated citizens by contrast, could claim no State citizenship in any State along with the privileges and immunities that go along with such citizenship while in another State. They could easily be treated as aliens and denied the right to hold property, sue, give evidence, make contracts, etc., when returning to the south after the war. Bingham remarked that if //“//**//the rebel States would make no denial of right to emancipated citizens no [fourteenth] amendment would be needed. But they will make denial.//**” 52 What denial does Bingham speak of, education, jobs, a library card? No, denial to hold property, convey property, to sue, to seek vindication of civil wrongs under the law in State courts, to give evidence, to be held equal as any other citizen of the State before the courts of justice within the State, to be heard under the same laws of due process as everyone else and to be equally punished for like crimes as any other citizen, and to make and enforce contracts. These basic rights are //common// to all citizens of every State to which government is established to protect, and therefore, cannot be denied to other citizens of another State (citizens of the United States). Governor Oliver P. Morton of Indiana said of the amendments first section at the time the amendment was before the States: > By this it is intended to throw the equal protection of the law around every person who may be within the jurisdiction of any State, whether citizen or alien, and without regard to condition or residence, not only as to life and liberty, but also as to property. It has happened in times past that several of the Southern States __discriminated against citizens of other States__, by withholding the protection of the laws life and liberty, and denying to them the ordinary remedies in the courts for the vindication of their civil rights, and hence the adoption of this provision. 53 Whatever Bingham might have additionally desired the Fourteenth to embrace or accomplish, he abandoned all rights to such claims after May of 1866, and settled all outstanding controversies in regards to the privileges and immunities of United States citizens in January of 1871 with the release of H.R. Report 22 ** **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **﻿**  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **    **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **﻿**  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  **  When the Supreme Court hears oral arguments on March 2, 2010 in the landmark gun rights case //McDonald v. Chicago//, the Second Amendment won’t be the only thing on the justices’ minds. That’s because when it comes to protecting constitutional rights from the depredations of state and local governments, the Court must obey the 14th Amendment, which commands: “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.” //McDonald// will therefore turn on whether the right to keep and bear arms applies to Chicago via the 14th Amendment’s Privileges or Immunities Clause or via its Due Process Clause. That distinction matters because the Privileges or Immunities Clause has been a dead letter since the controversial [|//Slaughterhouse Cases//] of 1873, which gutted the clause while upholding a state-sanctioned slaughterhouse monopoly in Louisiana. And despite overwhelming [|historical evidence] that the Privileges or Immunities Clause was specifically written and ratified after the Civil War in order to secure individual rights against state abuse—including the right to armed self-defense—//Slaughterhouse// has never been overturned. So the stakes in //McDonald// are high indeed. And they aren’t just limited to gun rights. Consider this: Among the legal experts lining up in support of overturning //Slaughterhouse// and reviving the Privileges or Immunities Clause is liberal law professor Akhil Amar of Yale University. Nobody’s idea of a gun nut, Amar is a supporter of progressive politics. And in his opinion, so were the authors of the Privileges or Immunities Clause. “The framers of the 14th Amendment were radical redistributionists,” Amar [|told] //The Wall Street Journal//. “The 13th Amendment frees the slaves and there’s no compensation. It’s the biggest redistribution of property in history.” Under this interpretation, the privileges or immunities of citizenship might include the right to health care, to a living wage, or to some other welfare right fancied by today’s progressive activists. It’s a clever argument, but it doesn’t hold up. Amar conveniently ignores the 14th Amendment’s origins in the free labor philosophy of the Radical Republicans, who drafted and spearheaded its ratification in 1868. Remember that the anti-slavery movement that produced those Republicans rejected human bondage as a violation of natural rights, or as the abolitionist William Lloyd Garrison put it, “man cannot hold property in man.” The escaped former slave [|Frederick Douglass] made the same point in the [|famous letter] he wrote to his former master. “You are a man and so am I,” Douglass declared, echoing the Lockean idea of possessing a property right to your own body. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an //honest// living. Your faculties remained yours, and mine became useful to their rightful owner." That’s not redistribution, it’s //restitution//. Douglass simply reclaimed his own stolen property from the unjust regime that took it. In the aftermath of the Civil War, the former Confederate states sought to resurrect that vile regime with a web of laws and regulations that robbed the freed slaves (and their white allies) of their civil, political, and economic rights. Mississippi’s Black Code, for example, declared “that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind,” while Louisiana’s Black Code mandated that, “Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro.” That’s the historical context that produced the 14th Amendment. As the Institute for Justice writes in the friend of the court brief [|it filed] in //McDonald//, “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition. Southern states did all of those things both before and after the Civil War, and the point of the Fourteenth Amendment was to make them stop.” In sum, the 14th Amendment was designed to protect an individualistic and market-oriented form of self-ownership, one that includes the right to armed self-defense, the right to private property, the right to liberty of contract, and the right to pursue an honest living free from arbitrary and unnecessary government interference. That’s the libertarian promise of the Privileges or Immunities Clause. And that’s why Tuesday’s arguments in //McDonald v. Chicago// matter for both gun rights and economic liberty.