Recently the topic of the 14th became part of the national discourse, thanks to the President of the United States claiming it was necessary to change parts of it to avoid what it’s commonly called “anchor babies”: children born in the United States from foreign parents that are automatically american citizens for the solely fact that they were born in USA territory.
Before anyone can reach any conclusions on the validity or effectiveness of the 14th Amendment, or even evaluate if it’s right or wrong, it’s important to understand what it is and it’s history first.
What is the 14th Amendment?
As it’s written on the Constitution of the United States of America:
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.
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.
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.
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.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The History of the 14th Amendment
The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States — including former slaves — and guaranteed all citizens “equal protection of the laws.” One of three amendments passed during the Reconstruction era to abolish slavery and establish civil and legal rights for black Americans, it would become the basis for many landmark Supreme Court decisions over the years.
Abraham Lincoln’s assassination in April 1865 left his successor, President Andrew Johnson, to preside over the complex process of incorporating former Confederate states back into the Union after the Civil War and establishing former slaves as free and equal citizens.
Johnson, a Democrat (and former slaveholder) from Tennessee, supported emancipation, but he differed greatly from the Republican-controlled Congress in his view of how Reconstruction should proceed. Johnson showed relative leniency toward the former Confederate states as they were reintroduced into the Union.
But many northerners were outraged when the newly elected southern state legislatures — largely dominated by former Confederate leaders — enacted black codes, which were repressive laws that strictly regulated the behavior of black citizens and effectively kept them dependent on white planters.
CIVIL RIGHTS ACT OF 1866
In creating the Civil Rights Act of 1866, Congress was using the authority given it to enforce the newly ratified 13th Amendment, which abolished slavery, and protect the rights of black Americans.
Johnson vetoed the bill, and though Congress successfully overrode his veto and made it into law in April 1866 — the first time in history that Congress overrode a presidential veto of a major bill — even some Republicans thought another amendment was necessary to provide firm constitutional grounds for the new legislation.
In late April, Representative Thaddeus Stevens introduced a plan that combined several different legislative proposals (civil rights for blacks, how to apportion representatives in Congress, punitive measures against the former Confederate States of America and repudiation of Confederate war debt), into a single constitutional amendment. After the House and Senate both voted on the amendment by June 1866, it was submitted to the states for ratification.
President Johnson made clear his opposition to the 14th Amendment as it made its way through the ratification process, but Congressional elections in late 1866 gave Republicans veto-proof majorities in both the House and Senate.
Southern states also resisted, but Congress required them to ratify the 13th and 14th Amendments as a condition of regaining representation in Congress, and the ongoing presence of the Union Army in the former Confederate states ensured their compliance.
On July 9, 1868, Louisiana and South Carolina voted to ratify the 14th Amendment, making up the necessary two-thirds majority.
14TH AMENDMENT – SECTION 1
The opening sentence of Section 1 of the 14th Amendment defined U.S. 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.”
This clearly repudiated the Supreme Court’s notorious 1857 Dred Scott decision, in which Chief Justice Roger Taney wrote that a black man, even if born free, could not claim rights of citizenship under the federal constitution.
Section 1’s next clause was: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This greatly expanded the civil and legal rights of all American citizens by protecting them from infringement by the states as well as by the federal government.
The third clause, “nor shall any State deprive any person of life, liberty or property, without due process of law,” expanded the due process clause of the Fifth Amendment to apply to the states as well as the federal government.
Over time, the Supreme Court has interpreted this clause to guarantee a wide array of rights against infringement by the states, including those enumerated in the Bill of Rights (freedom of speech, free exercise of religion, right to bear arms, etc.) as well as the right to privacy and other fundamental rights not mentioned elsewhere in the Constitution.
Finally, the “equal protection clause” (“nor deny to any person within its jurisdiction the equal protection of the laws”) was clearly intended to stop state governments from discriminating against black Americans, and over the years would play a key role in many landmark civil rights cases.
14TH AMENDMENT – SECTIONS 2-5
In its later sections, the 14th Amendment authorized the federal government to punish states that violated or abridged their citizens’ right to vote by proportionally reducing the states’ representation in Congress, and mandated that anyone who “engaged in insurrection” against the United States could not hold civil, military or elected office (without the approval of two-thirds of the House and Senate).
It also upheld the national debt, but exempted federal and state governments from paying any debts incurred by the former Confederate states.
The fifth and final section of the 14th Amendment (“Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”) echoed a similar enforcement clause in the 13th Amendment.
In giving Congress power to pass laws to safeguard the sweeping provisions of Section 1, in particular, the 14th Amendment effectively altered the balance of power between the federal and state governments in the United States.
Nearly a century later, Congress would use this authority to pass landmark civil rights legislation, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
IMPACT OF THE 14TH AMENDMENT
In its early decisions involving the 14th Amendment, the Supreme Court often limited the application of its protections on a state and local level.
In Plessy v. Ferguson (1896), the Court ruled that racially segregated public facilities did not violate the equal protection clause of the 14th Amendment, a decision that would help establish infamous Jim Crow laws throughout the South for decades to come.
But beginning in the 1920s, the Supreme Court increasingly applied the protections of the 14th Amendment on the state and local level. Ruling on appeal in the 1925 case Gitlow v. New York, the Court stated that the due process clause of the 14th Amendment protected the First Amendment rights of freedom of speech from infringement by the state as well as the federal government.
And in its famous 1954 ruling in Brown v. Board of Education, the Supreme Court overturned the “separate but equal” doctrine established in Plessy v. Ferguson, ruling that segregated public schools did in fact violate the equal protection clause of the 14th Amendment.
In other landmark rulings, the Supreme Court has cited the 14th Amendment in cases involving the use of contraception (1965’s Griswold v. Connecticut), interracial marriage (1967’s Loving v. Virginia), abortion (1973’s Roe v. Wade), a highly contested presidential election (2000’s Bush v. Gore), gun rights (2010’s McDonald v. Chicago) and same-sex marriage (2015’s Obergefell v. Hodges).
The 14th Amendment in Action: The Case of United States of America against Wong Kim Ark
It was the fall of 1895, and Wong Kim Ark was puzzled and alarmed as he bided his time on the steamship Coptic, which floated in the San Francisco Bay after returning him from a visit to China. His papers were in order. He had seen to that. The required statement, certification from white men that he was born in the United States and therefore a citizen, were in order. He had traveled to China for a visit and had little trouble being readmitted.
On this occasion, however, authorities denied him entry, returning him to the ship on which he had arrived, and from there to another ship, the Gaelic, and then to the Peking. For four months, the only certainty to Wong’s life was the tides in San Francisco Bay, where he awaited word of his fate.
What he could not have known was that he was about to become a “test case” brought by the United States government, egged on by a wave of anti-Chinese sentiment, in an effort to undermine the 14th Amendment “birthright” provision, which made Wong a citizen in the first place as the plain and simple language of the amendment said 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.”
For the Chinese in America, this was the “exclusion era,” a radical shift for the United States., which for the most part, since its creation as a republic, had encouraged people to come to its shores. In the beginning, as the country built its railroads, mined its gold and farmed the valleys of Northern California, the Chinese were also welcomed. They streamed in by the thousands.
But as the Depression of 1873 took its toll on white working men, they began to look for scapegoats. Mob violence, arson and overt racist derision swept through California, powered by slogan “the Chinese must go.” Congress enacted the Chinese Exclusion Act of 1882, designed to put an end to the flow of Chinese. But that was not enough for the building anti-Chinese wave.
Thousands of children had been born to Chinese parents in the United States and birthright citizenship was the next target, just as it is now today under President Trump. He has long denounced what he and other immigration foes call “anchor babies,” whose parents enter the country illegally just to make sure their children enjoy the benefits of citizenship.
On a taped interview with Axios back in October 2018, President Donald Trump vowed to sign an executive order to try to end the right to U.S. citizenship for children born in the United States to noncitizens. Trump was reviving an issue from his presidential campaign ahead of the 2018’s midterm elections.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump said in the interview, which is scheduled to air on HBO over the weekend. “It’s ridiculous. It’s ridiculous. And it has to end.” – said Trump in the aformentioned interview.
What the President probably does not knew is that bills to do just what he was advocating have been around for years and have gone nowhere. Additionally, many, but not all, scholars believe such a change would need to confront the almost insurmountable task of amending the Constitution.
Young men like Wong were not called “anchor babies” by critics then but rather “accidental citizens,” said University of New Hampshire legal historian Lucy Salyer, “citizens by the accident of birth” as the dissenting justices in Wong Kim Ark’s Supreme Court case would put it.
What he did not know was that “they were looking for some poor chump,” Salyer told the Washington Post, to make an example of, at the nation’s highest court. And that “chump” was Wong Kim Ark. So there it was, the intimidating-sounding case of United States vs. Wong Kim Ark, a cook.
Yet he won.
And in the annals of civil rights in America, it was a “huge” case, Salyer said. The justice who wrote the opinion for the court’s majority, was fully aware that its implications went far beyond the Chinese. As the justice who authored the majority opinion in U.S. vs. Wong Kim Ark wrote, “to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” Had the decision gone the other way, Salyer said, instead of a nation of immigrants, America would have become “colonies of foreigners.”
For all its importance, it never became a famous landmark. There is Dred Scott and there is Plessy, there is Brown and there is Bakke and Loving. But Wong Kim Ark draws a blank with most Americans.
– Amendment XIV, Constitution Center.
– Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005).
– Fourteenth Amendment, HarpWeek.
– 10 Huge Supreme Court Cases About the 14th Amendment, Constitution Center.
– The Washington Post