American Biographies Week Three Documents America’s Second Constitution
“The amendment stands fourteenth numerically but stands first substantively. In its importance
to modern constitutional law courts have decided more landmark cases under this amendment
than under any other and perhaps under all the other amendments put together.”
It prevents state and local governments from violating the individual American’s fundamental
rights and freedoms - privileges and immunities.
The Constitution and Its Amendments
Roger Newman
14th Amendment To The
Constitution
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 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.
Section 5.
The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.
Citizenship
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and the State wherein they reside.
At issue is the first clause of the 14th Amendment, which states, “All persons born … in the United States,
and subject to the jurisdiction thereof, are citizens of the United States.” As the Supreme Court held in the
Slaughterhouse Cases shortly after the adoption of that amendment, the main purpose “was to establish
the citizenship of the negro,” who, while recently freed in the Civil WCar, “were still not only not citizens,
but were incapable of becoming so by anything short of an amendment to the Constitution.” No one has
ever suggested that the three civil rights amendments (13th, 14th and 15th) would have been adopted,
absent the need to give citizenship and protection to blacks.
Even more relevant, and totally ignored in the current discussion, is that, while the 14th Amendment
reads “all persons born in the United States” are citizens, it has never been disputed that “all” never
meant “all.” In 1873, less than five years after the adoption of the 14th Amendment, the Supreme
Courtaddressed the meaning of that citizenship provision by considering the facts surrounding the
adoption of the 14th Amendment, “almost too recent to be called history, but which are familiar to us all.”
The court concluded, without dissent on this point, that “[t]he phrase, ‘subject to its jurisdiction’ was
intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign
States born within the United States.”
If that had remained the Supreme Court’s ruling on this issue, there would be no need for a new
amendment to deny citizenship to children of illegal aliens. But more than a quarter-century later - when
the members of the Supreme Court no longer claimed personal knowledge of the events leading up to the
14th Amendment - the court, in United States v. Wong Kim Ark, spoke again on this issue. It first
reaffirmed that “all” in the 14th Amendment did not mean “all.” It recognized exclusions: A child born in
the United States to a member of an Indian tribe, or to ministers or consul of a foreign government, or to
alien enemies in hostile occupation, was not a U.S. citizen. The reason for these exceptions was that
such parents did not owe this country “direct and immediate allegiance.”
This later Supreme Court, however, disagreed with the earlier decision holding that a child born to aliens
in this country does not have birthright citizenship, at least on the facts presented in that case. At the time
of his birth, Mr. Wong’s “mother and father were domiciled residents of the United States, and had
established and enjoyed a permanent domicile and residence therein … and were engaged in the
prosecution of business.” Mr. Wong had, throughout his life, lived in the United States at the family home
in Sacramento Calif., leaving only for short visits to China. These facts were the antithesis of current
illegal aliens. Given those facts, the court held that Mr. Wong met the requirement of being “subject to the
jurisdiction” of the United States, and thus sustained his citizenship from birth.
Should that decision necessarily mean that “all” persons born to illegal aliens automatically receive
citizenship? It doesn’t even discuss illegal aliens (which did not then exist) and thus does not answer that
question.
The court, however, sets forth two conditions that, if existent, warrant providing citizenship to children of
aliens: “allegiance” and “ligeance.” For example, American Indians were excluded from birthright
citizenship, because they were held to owe allegiance to their tribes, not to the United States. Ligeance,
for those unfamiliar with that old English term, is the “connection between sovereign and subject by which
they were mutually bound, the former to protection and the securing of justice, the latter to faithful
service.”
A bill just introduced in the Texas Legislature by Rep. Leo Berman prohibiting the issuance of a birth
certificate to a newborn child of an illegal alien - if enacted - would undoubtedly make it necessary for the
Supreme Court to decide which of its two 19th-century holdings on the meaning of the citizenship
provision in the 14th Amendment is the correct one as related to children of illegal aliens.
That issue would be presented by a lawsuit by such child to require issuance of the birth certificate and
for a declaration of the unconstitutionality of the law. The court would then have to consider whether an
illegal alien meets the requisite requirements of allegiance and ligeance to have truly placed himself
“subject to the jurisdiction of” this country’s government. How would that be possible given the alien’s
violation of this country’s laws by entering and remaining? Isn’t violation of law, by definition, inconsistent
with allegiance and, particularly, faithful service to this country?
Unless that statute is enacted in Texas or another state, this issue cannot readily be presented to the
Supreme Court because of a judicial prerequisite to hearing a case that requires the plaintiff to have
“standing” - a personal interest. It is doubtful that any interested taxpayer would have standing to object to
issuance of a birth certificate, documenting a claim of citizenship by a child of an illegal alien. Hence,
absent a case challenging a state’s refusal to issue a birth certificate, the courts could only rule on it if and
when the government itself were to raise this issue in the courts - unlikely, at least with the current
administration.
Thus, without state action on the subject, the only practical way to return to the original intent of the 14th
Amendment would be through a new constitutional amendment. Beyond that, these facts demonstrate
that those seeking to return to that original intent should not be castigated for supposedly seeking to
emasculate the 14th Amendment; they are not.
Gerald Walpin is a New York lawyer who served as inspector general of the Corporation for National and
Community Service. He is currently working on a book on how the Supreme Court has altered the
Constitution.
Black codes[edit] Main article: Black codes
Over the period of 1687-1865,Virginia enacted more than 130 slave statutes among which were seven
[5]
major slave codes, with some containing more than fifty provisions. “Black codes” in the antebellum
South contained more regulations of free Blacks than of slaves. Chattel slaves basically lived under the
complete control of their owners; non-slaves showed more of a challenge to the boundaries of White[6]
dominated society. Black Codes in the antebellum South heavily regulated what people could do. If a
meaningful courtship was established across plantations, the enslaved risked severe punishments at the
[7]
hands of the patrollers or a pass in order to pursue this relationship. Blacks could not assemble, bear
[8]
arms, become literate, speak freely, or testify against White people in Court. These regulations
intensified during the 1800s, intensifying after Nat Turner'sinsurrection of 1831, and culminating in the
[9][10][11]
Supreme Court's Dred Scott decision of 1857.
Restrictions on manumission and freedom of
[11]
movement placed restrictions on what Black people could do.
These codes contained a few protections, such as prohibition against murdering slaves. Louisiana based
[11]
its laws on the French Code Noir issued in 1685. New restrictions, as well, were placed on
intermarriage, concubinage and miscegenation with slaves. Free whites could no longer marry a slave
and thereby emancipate her and her children, and no freed person was capable of receiving a donation
[12]
from a white, whether by act inter vivos or mortis causa.
As the abolitionist movement gained force and escape programs for slaves such as the Underground
Railroad expanded, concern about blacks heightened among some whites in the North. North of the
Mason–Dixon line, anti-Black laws were generally less severe. Some public spaces were segregated, and
[8]
Blacks generally did not have the right to vote.
All the slave states passed laws banning the marriage of whites and black people, so-called anti[13]
miscegenation laws, as did several new free states, including Indiana, Illinois and Michigan. Indiana
and Illinois shared borders with slave states and the southern populations of these states had cultures
that shared more values with the South across the Ohio River than the northern populations. In some
states these codes included vagrancy laws that targeted unemployed blacks, apprentice laws that made
black orphans and dependents available for hire to whites, and commercial laws that excluded blacks
[14]
from certain trades and businesses and restricted their ownership of property.
Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the
State, after the adoption of this Constitution." The 1848 Constitution of Illinois led to one of the harshest
Black Code systems in the nation until the Civil War. The Illinois Black Code of 1853 prohibited any Black
persons from outside of the state from staying in the state for more than ten days, subjecting Black
[15]
persons who remain beyond the ten days to arrest, detention, a $50 fine, or deportation.
Maryland passed vagrancy and apprentice laws, and required Blacks to obtain licenses from Whites
[16]
[17]
before doing business. It prohibited Black immigration until 1865. Most of the Maryland Black Code
was repealed in the Constitution of 1867, although Black women were not allowed to testify against White
[17]
men with whom they had produced children.
In some States, Black Code legislation used text directly from the slave codes, simply substituting Negro
[18][19]
or other words in place of slave.
Jim Crow Laws
The Jim Crow laws were racial segregation laws enacted after the Reconstruction period in Southern
United States, at state and local levels, and which continued in force until 1965, which mandated de jure
racial segregation in all public facilities in Southern states of the former Confederacy, with, starting in
1890, a "separate but equal" status for African Americans. The separation in practice led to conditions for
African Americans that were inferior to those provided for white Americans, systematizing a number of
economic, educational and social disadvantages. De jure segregation mainly applied to the Southern
United States, while Northern segregation was generally de facto — patterns of segregation in housing
enforced by covenants, bank lending practices and job discrimination, including discriminatory union
practices for decades.
Jim Crow laws mandated the segregation of public schools, public places and public transportation, and
the segregation of restrooms, restaurants and drinking fountains for whites and blacks. The U.S. military
was also segregated, as were federal workplaces, initiated in 1913 under President Woodrow Wilson, the
first Southern president since 1856. His administration practiced overt racial discrimination in hiring,
requiring candidates to submit photos.
These Jim Crow laws followed the 1800–1866 Black Codes, which had previously restricted the civil
rights and civil liberties of African Americans with no pretense of equality. State-sponsored school
segregation was declared unconstitutional by the Supreme Court of the United States in 1954 in Brown v.
Board of Education. Generally, the remaining Jim Crow laws were overruled by the Civil Rights Act of
1964 and the Voting Rights Act of 1965.