Blood or Soil: Jus Sanguinis or Jus Soli
The Fourteenth Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."
The debate over the Fourteenth Amendment is critically important. Those who want to curtail immigration insist, with very little hesitation, that the Fourteenth Amendment needs to be rescinded or modified to prevent the children of illegal immigrants from becoming citizens simply because they were born on the soil of this country. The Fourteenth Amendment's grant of citizenship by virtue of their birth — (jus soli) born of the soil rather than their blood (jus sanguinis) — has fueled much controversy.
Certainly, so called “Anchor Babies” do allow immigrants to establish the family ties so necessary for those who are considered less than desirable as immigrants. One should realize that it is a long process requiring the “anchor baby” to reach the age of 21 in order to petition for his parents and even those numbers are limited to less than five thousand a year. The number of babies born to illegal immigrants is less than 1 percent; certainly small compared to the total population of the country. In fact, a number of babies born here to non-citizens are actually born to well-to-do Asian mothers who pay for all medical services and even luxury accommodations. Nevertheless, the current controversy rages and one would think the country is literally crawling with illegal babies.
However, the Fourteenth Amendment is much more than protection for “anchor babies.” Before we “throw that proverbial baby out with the bath water,” it would behoove those so inclined to take another extensive look at the Fourteenth Amendment and all it enables. It is not a simple story and there are pluses and minuses and detours along the way. Much case law rests upon it; even some such as recent Second Amendment protections. (Cato.org is a good source and has extensive coverage of this particular issue).
I know my friends and readers get tired of me railing about the evils of pragmatism. Pragmatism is a philosophy based on the immediate and short term, with the allowance that a good end can be achieved with bad means. The word "pragmatic" was not always a substitute for practical. Practicing pragmatism meant deliberately sacrificing principles if necessary for one to obtain their goal.
Even the dedicated delegates to the Constitutional Convention compromised their principles for “pragmatic reasons.” These compromises, we can see, in hindsight, were, at the least, problematic. More philosophical analysts fault the compromise on slavery as a classic illustration of the far-reaching consequences wrought by the pragmatic decision to sacrifice the principle of inalienable rights of each person. To achieve the "good end" of ratifying the Constitution they used the bad means of allowing slavery to continue. The continuance of selling and owning humans, Civil War, Reconstruction and the laws that came out of those problems represent the worst results of pragmatism and compromise.
Most people who have studied the history of that period identified with the angst of the slavery compromise but from today's values have a difficult time imagining how they could not uphold the validity of the humanity of all people. Would a week more of discussion and debate have resolved the problem? A month or a year? Probably not, sad to say. Later, prior to the civil war, the entrenched nature of the era's anti-human bigotry was on display not only in remarks made by Southern slave owners but even in the openly stated opinions of the pre-war President Lincoln. Their views horrify us today.
With the availability of historical legal speeches and writings online, one can read and better understand the the arguments that were a part of the Reconstruction period. They certainly give one a general feeling of deja-vu. As we enter 2012, many of the same arguments from before the Civil War and during Reconstruction, are still discussed and debated in legal journals and also among those concerned about the tension between protecting rights and preserving a system of justice.
Early concerns that still exist concern the idea that the Fourteenth Amendment ignored the important aspect of the states as a check on the power of the national government and many worried and even predicted the national government could too easily supersede the state. This often results in individuals having less control of their lives as the seat of power is larger and further removed from their local area.
Conversely, there was no doubt that the states were not protecting the very basic rights of the newly freed former slaves. Restrictive black codes were put in place by those who were part of the governance in the various states and who, from the codes they established, evidently had no compunctions about denying black people (or any white people who objected to their mistreatment) equal liberties and inborn or inalienable rights.
At the same time there were those who argue that the Fourteenth Amendment established a separate “granting of rights” inconsistent with the theory of in-born inalienable rights. They argued the establishment of a new amendment blurred the lines between freed men and those already citizens and created a separate set of government-granted rights.
Another honest concern in the original debates was the desire to not reflect the ancient idea that peasants “belonged to the land.” In medieval times if a noble would lose or sell his land, the serfs that lived on the land went with the land. Conversely, the idea of a nobility being protected by recognizing bloodlines was anathema to those who held the principle of equality before the law.
The argument today has evolved along a different line. Now, among those who wish to limit or end most immigration, jus soli, they argue is a mistaken interpretation and illegal immigrants were not a part of the original intent. They believe that that simply being born on “our soil” was not nor should no longer be a justification of citizenship.
Primarily, though, from the Freedman's Bureau Act of 1866 onward, the issue argued was the extent of the protection already existing under the Bill of Rights and the observation that the various states were not extending that through the states to each person. The concerns with birthright were for the protection of rights guaranteed under the Bill of Rights for all people, as much as for the Freedmen.
A small chronology might also help.
In 1833, the Supreme court had already ruled that the Bill of Rights did not “apply” to the States. The supporters of the Fourteenth Amendment hoped the new Amendment would require the various states to honor, just as the national government must, the individual rights (not granted) enshrined in the Bill of Rights.
The Freedman's Bureau Act of 1866 was set to expire and was renewed in 1868 for one more year. The second version stated that it was necessary for the personal safety for Freedmen who were at risk. Pragmatism again reared its head in the ratification process. It was announced that three fourths of the states had ratified the Fourteenth Amendment, however, the tactics used to force the amendment upon the south caused two states, Ohio and New Jersey, which had been firmly in agreement, to rescind their ratification.
As these two states votes were necessary for passage, Marital Law was declared and resentments surged. In their eagerness to extend the Bill of Rights' protections to states, they were willing to compel “at the point of a bayonet” the Southern States to accept the Fourteenth Amendment. The bad means created more controversy and probably allowed a less desirable end result. Particularly egregious was the passage of the Reconstruction Act, vetoed by President Andrew Johnson as he noted it was a “Bill of Attainder” against all the Southern people. Nevertheless, pragmatism won out and the President's veto and his and many people's Constitutional concerns were over ridden.
In 1870 the Enforcement Act was passed followed the next year by the Civil rights Act of 1871 to further protect the Freedmen's rights from acts done under “color of state law.” The resulting debates and controversy is still on going.
Wikipedia gives a short summary of the primary arguments and case law which bring alive the thoughts and difficult decisions that developed.
During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes Native Americans who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause." Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three Senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Fourteenth Amendment would confer citizenship on them at birth, and no Senator offered a contrary opinion.
Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
In Elk v. Wilkins, 112 U.S. 94 (1884), the clause's meaning was tested regarding whether birth in the United States automatically extended national citizenship. The Supreme Court held that Native Americans who voluntarily quit their tribes did not automatically gain national citizenship.
The clause's meaning was tested again in the case of United States v. Wong Kim Ark 169 U.S. 649 (1898). The Supreme Court held that under the Fourteenth Amendment a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying on business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent.
For a more comprehensive discussion of the Privileges and Immunities clause and a perspective of its importance see this Institute for Justice video:To see the video go to http://www.youtube.com/watch?feature=player_embedded&v=KWG8AcCty_I
Representative John Bingham of Ohio, the primary framer of the first section of the Fourteenth Amendment predicted that the “Privileges and Immunities” Section would more likely be involved in litigation than any other provision in the constitution. He was not mistaken.
This article originally appeared in the AmericanDailyHerald
Lynn Atherton-Bloxham has been an enthusiastic pro-freedom activist for many years. A registered commodity and stock broker, her work has included conducting financial and economic evaluations for businesses. As a writer and political and social analyst, her work has appeared in many publications, starting with the Johnson County Missouri Conservative Newsletter in 1962 and continuing since with the Kansas City Business Journal, The Heartland Institute, the California Libertarian Journal, and the Oklahoma Libertarian Forum.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.