Birthright Citizenship

© O. R. Adams Jr. 2015

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Are "anchor babies" citizens? They should not be and are not.

The 14th Amendment to the United States Constitution was ratified on July 9, 1868. The first paragraph provides:

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. 

This paper is on the first sentence of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside "

Had the clause, "and subject to the jurisdiction thereof," not been added, our problem would be simple. All persons born in this country would be citizens. But the clause was added, and it was not just a prefatory clause   it was a limiting clause, and its meaning determines the question on anchor babies, which refers to children born in this country to illegal aliens, or immigrants as the liberals prefer to call them. The anchor part came about because many thought the child gave the family a foothold or means of entry into the country for the parents.

So how do we determine the meaning of the clause, "and subject to the jurisdiction thereof"?

On interpreting the meaning of a provision of the Constitution, the great and revered Chief Justice John Marshall said in 1827:

This Court has so often expressed the sentiments of profound and respectful reverence with which it approaches questions of this character … .

Much, too, has been said concerning the principles of construction which ought to be applied to the constitution of the United States.

On this subject, also, the Court has taken such frequent occasion to declare its opinion, as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers … . … [Emphasis added.]

When we advert to the course of reading generally pursued by American statesmen in early life, we must suppose, that the framers of our constitution were intimately acquainted with the writings of those wise and learned men, whose treatises on the laws of [25 U.S. 213, 354]   nature and nations have guided public opinion … . If we turn to those treatises, we find them to concur in the declaration, that contracts possess an original intrinsic obligation, derived from the acts of free agents, and not given by government. We must suppose, that the framers of our constitution took the same view of the subject, and the language they have used confirms this opinion. … [Ogden v, Saunders, 25 U.S. 213 (1827)[1]] [Emphasis added.]

The Ogden case, above, was on federal bankruptcy laws and the provision of our constitution that prohibits the states from passing laws that impair the obligation of contracts. There were several opinions of different justices in this case, and they pretty well cover the gamut of the six principles listed below for interpreting provisions of our Constitution.

I consider the famous and controversial Dred Scott case, Scott v. Sandford, 60 U.S. 393 (1856),[2] to contain the best and most complete explanation of the duties and restrictions of the United States Supreme Court that I have found. Chief Justice Roger Taney stated:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. …

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

This case was so important and so controversial, that all nine of the justices wrote opinions in it. Some concurring and some dissenting. But together they were prime examples of how the courts should reach a decision, and the tools they should use. In the various opinions on the Dred Scott case there were a number of references to Federalist papers, and reference to Sir William Blackstone's Commentaries on the Common Law of England, which became the common law of our country when the United States was formed. The history of our country was gone into at length. The six rules of construction listed below were adhered to and clearly demonstrated.  

A judge or a justice, in deciding a provision in our Constitution is not to inject his personal beliefs into the case, and decide what he or she thinks it should mean under the changed circumstances of today. Today's liberals call this kind of construction treating our Constitution as a "living" document. This is absurd, and it clearly usurps the rights of the people, who have the sole prerogative to make changes to our constitution. When a question arises on the meaning of a provision of our Constitution, it should be determined according to what was intended by those who formed and ratified the provision. That was the purpose for which the provision was enacted, and has nothing to do with what some liberal justice thinks is best. The two most generally accepted encyclopedias of the law are Corpus Juris Secundum (C.J.S.) and American Jurisprudence (2d.) (Am.Jr.2d).

Constitutional Law, § 20, 16 C.J.S. 70-74:

The function of the Court, in construing a constitutional provision or an amendment, the importance of which has been variously characterized, is to ascertain and give effect to the intent of the framers and the people who adopted it. In carrying out this function, the court should consider the object sought to be accomplished by the adoption of the provision, and proper regard should be given to the situation sought to be accomplished by the adoption of the provision, and proper regard should be given to the situation sought to be prevented or remedied, and the remedy sought to applied. … [Emphasis added.]

Constitutional Law, § 61, 16 Am. Jur. 2d 431-432

An elementary rule of construction is that, if possible, effect should be given to every part and every word of a constitution, and that no portion of the fundamental law should be treated as meaningless or superfluous, unless there is some clear reason to the contrary. The legal intendment is that every word and every clause has been inserted for some useful purpose, and, when rightfully understood, has some practical operation; each word, it has been said, must be presumed to have been carefully chosen and intentionally placed, as though it had been hammered into place.

The following are things that well-reasoned cases show are relevant to determining the meaning and purpose of a provision of the Constitution.

1. Primary consideration shall be given to the plain wording of the provision. Phrases and ideas of judges shall not be engrafted and treated as a part of the constitution which are not a part of any provision. All parts must be considered and given meaning. Where the wording needs further construction for application to a particular question, the following additional factors shall be considered to the extent needed.

2. Reliable and relevant legal and general history of this country, and of Great Britain, where applicable, up to the date of ratification. Learned treatises on a subject may be considered.

3. Relevant debates, speeches, and writings of our founders, framers, and those who took part in ratification. A good example is the many references the Courts have made over the years to The Federalist papers, 85 essays which were written by three of our founders, Alexander Hamilton, James Madison, and John Jay explaining to the country the purposes of various parts of our Constitution, which they urged the people to adopt. In Cohen v. Com of Virginia (1821), 19 U.S. 264,[3] Chief Justice John Marshall said of The Federalist papers:

The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed.

 4. Relevant matters of official record, including congressional records, legislative records, and other official records. A very important factor to consider is the Congressional Record on debates on proposed provisions.

5. Prior valid and relevant decisions of the Court should be considered, and may be controlling. However, if a prior decision was wrong it should be and often has been overruled and nullified.

6. Extraneous matters such as personal views of judges and justices, events at a later date, changes in conditions, and what other countries may be doing in like cases shall not be considered, as those are matters for the people and their representatives, who have the sole prerogative to change the Constitution when changes are needed.

These rules of construction have been followed by valid Supreme Court decisions throughout our history. Although the United States Supreme Court has not yet directly decided the matter, proper rules of construction give us the answer as to whether or not anchor babies are citizens.

The best way to determine the meaning intended and the purpose of the words in the 14th Amendment, "and subject to the jurisdiction thereof," is to look at the congressional records and see what was said about their purpose by those responsible for the wording. The primary author of the words was Senator Jacob Howard of Michigan.  He was a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment. He was the floor manager for the Amendment in the Senate. In this speech in the Senate, he introduces the Amendment on the floor of the Senate and explains its purposes. We are fortunate to have the record of Senator Howard's speech on the purpose and meaning of the 14th Amendment, with the comments of other senators.[4] They were made available by Congressman Steve King of Iowa, who authored H.R. 140, the Birthright Citizenship Act of 1052015, which provides:

SECTION 1. Short title.

This Act may be cited as the “Birthright Citizenship Act of 2015”.

SEC. 2. Citizenship at birth for certain persons born in the United States.

(a) In general.—Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended—

(1) by inserting “(a) In general.—” before “The following”;

(2) by redesignating subsections (a) through (h) as paragraphs (1) through (8), respectively; and

(3) by adding at the end the following:

“(b) Definition.—Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered ‘subject to the jurisdiction’ of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—

“(1) a citizen or national of the United States;

“(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or

“(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).”.

(b) Applicability.—The amendment made by subsection (a)(3) shall not be construed to affect the citizenship or nationality status of any person born before the date of the enactment of this Act.

Congressman King and Senator David Vitter of Louisiana have both introduced similar bills, one in the House and one in the Senate for the purpose of ending the unlawful practice of the government  granting citizenship to anyone born in the United States, even anchor babies. It is indeed disgraceful that our own federal government is violating our Constitution in this manner.

The Senate debate on the forming and purpose of the 14th Amendment, and particularly the clause, "and subject to the jurisdiction thereof," is critical to this issue. It appears to be the only explanation  available on its meaning and purpose, and I therefore consider it controlling on the issue. The Congressional Globe is a publication of the Congressional Record, and is available to the public.[5] Due to its extreme importance I am making all eight pages of the congressional record on the adopting of Section 1 available as an appendix to this article. The eighth page, 2897, shows the end of the debate on Section 1, and its adoption; and then the Senate took up Section 2. The adoption of Section 1 was apparently unanimous, since it was simply stated that it was agreed to. A large part of the discussion concerned whether or not a clause should be added to specifically exclude "Indians not taxed," such as reservation Indians, to make sure they would not be made citizens. Senator Howard explained that they would not be considered subject to the jurisdiction of the U. S., and would not be citizens. The majority agreed that such an amendment to the wording was not necessary to exclude the Indians, and that they would not be made citizens. It is patently absurd to think that the 14th Amendment would make children citizens who were born to illegal aliens, who were unlawfully in this country, when not even an American Indian was a citizen who was born to parents lawfully in this country and who had lived here all of their life. 

The Library of Congress has information that tells us how important the Senate debate is, and how important the explanation of Senator Howard is on the purpose of the clause, "subject to the jurisdiction thereof":

The amendment's language was drafted by the Joint Committee on Reconstruction. The language defining citizenship was not in the introduced version of the amendment (H. J. Res. 127), but, was moved by Senator Howard of Michigan on May 30, 1866. It was adopted by the Senate that day and later adopted by the House.[6]

"Senator Jacob Howard of Michigan was a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment. He was the floor manager for the Amendment in the Senate."[7]

It is quite obvious that no one would have better knowledge of the meaning and purpose of Section 1 of the 14th Amendment than Senator Howard.

The following are what I consider excerpts of the relevant and key parts of the debate:

Senator Howard explains:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers  accredited to the Government of the United States, but will include every other class of persons.  … (P. 2890)

We see from the above that we look to the parents to determine the status of the baby born to them. If they are a foreigner or an alien, then the baby born to them is the same. From the above, it might be erroneously argued that foreigners and aliens would not be excluded unless they also belonged to families of ambassadors or foreign ministers, because the word, or, was not inserted before that last category, ambassadors or foreign ministers. Had the word, and, been placed before the last category, that could be more reasonably argued. As it is, there are three separate categories listed of those excluded. Any doubt is also cleared up by further discussions and statements. For example, Indians on reservations and not taxed are excluded from being citizens, because they are members of what are considered "quasi foreign nations." Certainly, if babies born to Indians are excluded as citizens because their parents were members of merely a quasi foreign nation, babies born to members of a real foreign nation would be excluded.

Senator Doolittle interposed:

I presume the honorable Senator from Michigan does not intend by this amendment to include Indians. I move therefore to amend the amendment … buy inserting the words "excluding Indians not taxed." … (P. 2890)

Senator Howard:

I hope the amendment will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. (P. 2890)

Senator Cowan presented an important question on the law, illustrating the difference between equal protection of the law, which is afforded to everyone in the country, and jurisdiction for citizenship, which is limited; and then answered it himself, according to his understanding:

Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?  … He has a right to protection of the laws, but he is not a citizen in the ordinary acceptance of the word. (P. 2890)

Senator Saulsbury remarked on the primary purpose of the primary purpose of the 14th Amendment:

I do not presume that any one will pretend to disguise the fact that the object of this first section is to declare that negroes are citizens of the United States. (P. 2897)

It is interesting that Senator Howard said of the 14th Amendment: "This amendment which I have offered is simply declaratory of what I regard as the law of the land already." He apparently regarded negroes born in this country as all having been freed by the conclusion of the Civil War. When born, their parents were not the subjects of any foreign government. They were in all respects subject to the entire jurisdiction of the United States.

Anchor babies, on the other hand, are born to aliens who are subjects of a foreign government. Not only that, they are here illegally. It is clear that one of the purposes of the clause, "and subject to the jurisdiction thereof" was to exclude such people from citizenship. Any honest judge or justice that examines the facts would so hold.

The United States Supreme Court has not yet directly ruled on this question, although some relevant matters have been decided by it.

In Elk v. Wilkins, 112 U.S. 94 (1884), the United States supreme Court held:

An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, but who has not been naturalized, or taxed, or recognized as a citizen either by the United States or by the state, is not a citizen of the United States within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution.

We see from this case that it is the time of birth that determines the status of the child. Later separation from the tribe and subjecting himself to the jurisdiction  of the country does not suffice. This is consistent with the 14th Amendment, and Senator Howard's explanation.

There was one dissent in the Elk v. Wilkins case. The controlling opinion was delivered by Justice Gray. The opinion states:

The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. …

… The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. …

Justice Gray's controlling opinion used the same kind of language, about allegiance to an alien power, as was by used by Senator Howard about not including persons born who were foreigners or aliens.

Justice Harlan, who dissented in the Elk case, stated his basis which was that Elk "had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States." Realizing its importance, he referred at length to the Senate debate on the 14th Amendment, particularly to the parts about not putting in the phrase Senator Trumbull wanted of 'excluding Indians not taxed.' However, he overlooked the key part, which was Senator Howard's explanation that it was not needed, because they were excluded in the 'subject to the jurisdiction' part, and this was what was accepted by the Senate.

In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898),[8] Justice Gray again rendered the majority opinion in the case, but this time I consider his opinion wrong; although even it does not support making citizens of babies born to illegal aliens.

Justice Gray stated:

Wong Kim Ark was born in 1873, in the city of San Francisco, in the state of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; n d neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him [169 U.S. 649, 653]   therefrom. In 1890 (when he must have been about 17 years of age) he departed for China, on a temporary visit, and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about 21 years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit, and with the intention of returning to the United States; and he did return thereto, by sea, in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission, upon the sole ground that he was not a citizen of the United States. …

Justice Gray went at length into the laws of England, even referring to Blackstone's Commentaries on the English common law, and our early laws and cases; but he failed to properly consider the Senate debate on the 14th Amendment, which should be controlling. Senator Howard specifically stated that foreigners and aliens were not included, although they were born here. It is also patently clear that a child born in this country to an alien or foreigner takes the status of its parent or parents at the time it was born. On this latter point, Justice Gray did recognize that 'All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.' This agrees with Senator Howard's explanation on this same principle being applicable to the 14th Amendment. Wong Kim Ark's parents were foreigners and aliens, and never became citizens. For him to have ever been a citizen, his mother or father or both would have had to be a citizen at his birth. This was not the case. He would then have to have complied with our naturalization laws to become a citizen.  Justice Gray did recognize that the 14th Amendment was controlling in the matter.

He referred at length to the Slaughterhouse Cases, which I will cover later in this paper. The majority opinion was rendered by Justice Miller.  Justice Gray stated:

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: 'The 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.' 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question

Justice Miller clearly stated the limiting phrase of the 14th Amendment, giving it the exact meaning stated by Senator Howard, who was responsible for the wording, and knew the purpose better than anyone. Yet Senator Gray brushed it a aside, and gave the clause an entirely different meaning than was intended by those who formed and first passed the 14th Amendment.

Justice Gray did recognized that a reason for his own decision in the Elk case was:

That decision was placed upon the grounds that the meaning of those words was 'not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance' … .

In the Elk case, the Indian was denied citizenship because when born he owed allegiance to this tribe, which was considered a quasi-foreign country, and he never became naturalized. This complied with the purposes of those who formed the 14th Amendment.

Justice Gray in effect rewrites the 14th Amendment, stating:

The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

The above was completely contrary to what the framers of the 14th Amendment intended it to be. As shown by the quotes above form the debate, the question of a child of a Chinese immigrant was specifically discussed, and the Senate was satisfied that Howard's explanation of the exclusions of foreigners was sufficient. 

It is clear that Justice Gray injected his personal sympathies and feelings into the Wong Kim Ark case, and made a decision contrary to the law. When Wong Kim Ark was born, he owed allegiance to a real foreign country, China. But as stated above, even this erroneous decision would not support granting citizenship to families of illegal aliens.  

Chief Justice Fuller and Justice Harlan dissented from the this erroneous decision rendered for the majority by Justice Gray. It is stated in this dissent:

The Fourteenth Amendment came before the court in the Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73, at December term, 1872, the cases having been brought up by writ of error in May, 180, 10 Wall. 278, and it was held that the first clause was intended to define citizenship of the United States and citizenship of a State, which definitions recognized the distinction between the one and the other; that the privileges and immunities of citizens of the States embrace generally those fundamental civil rights for the security of which organized society was instituted, and which remain, with certain exceptions mentioned in the Federal Constitution, under the care of the state governments; while the privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the National government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and that it is the latter which are placed under the protection of Congress by the second clause.

And Mr. Justice Miller, delivering the opinion of the court, in analyzing the first clause, observed that

"the phrase 'subject to the jurisdiction thereof' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States, born within the United States."

The dissenting opinion follows Senator Howard's explanation, and I think it is clear that the dissent is correct. But not even the Wong Kim Ark case gives any real support to the idea that a child born to illegal aliens would be a citizen. Gray stressed facts that showed that the parents were longtime legal residents in business in this country. They obviously were legal residents as were many Chinese residents that were admitted into the country to do work, such as on the building of railroads.

The importance of the Slaughterhouse Cases is evident. Justice Gray referred to the cases, but omitted the key language applicable to the Wong Kim Ark case.

In the Slaughterhouse Cases,[9] 83 U.S. 36 (1872), "The legislature of Louisiana, on the 8th of March, 1869, passed an act granting to a corporation, created by it, the exclusive right, for twenty-five years, to have and maintain slaughterhouses, landings for cattle, and yards for inclosing cattle intended for sale or slaughter within the parishes of Orleans, Jefferson, and St. Bernard, in that State (a territory which, it was said -- see infra, p. 83 U. S. 85 -- contained 1154 square miles, including the city of New Orleans, and a population of between two and three hundred thousand people), and prohibiting all other persons from building, keeping, or having slaughterhouses, landings for cattle, and yards for cattle intended for sale or slaughter, within those limits, and requiring that all cattle and other animals intended for sale or slaughter in that district, should be brought to the yards and slaughterhouses of the corporation, and authorizing the corporation to exact certain prescribed fees for the use of its wharves and for each animal landed, and certain prescribed fees for each animal slaughtered, besides the head, feet, gore, and entrails, except of swine."

Justice Miller, on April 14th, 1873, delivered the opinion of the court. Below are some key excerpts of the opinion that are relevant to this paper:

The proposition is therefore reduced to these terms: can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?

This court is thus called upon for the first time to give construction to these articles.

We do not conceal from ourselves the great responsibility which this duty devolves upon us.

[On the importance of the 14th Amendment to this case:] The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States.

To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

"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 first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The 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.  [Emphasis added.]

The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States as a restraint upon the power of the States. This law, then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.

The court held that the Louisiana statute was constitutional, and within the police power of the states.

It has been argued that the interpretation of the 14th Amendment in the Slaughterhouse Cases was dictum. Dictum is generally defined as: "Statements or comments in an opinion concerning some rule of law or legal proposition not necessarily involved or essential to determination of the case at hand are obiter dicta, and lack the force of adjudication."[10] I disagree with the idea that the Court's language in the Slaughterhouse Cases was dictum. The appellants argued that their rights as citizens under the 14th Amendment was a basis for overturning the statute, and the court construed the meaning and purpose of the 14th Amendment. It is true that the part on "equal protection of the laws" would have more relevance than the citizenship part, but it was all part of the 1st section of the 14th Amendment. On the citizenship part, the court construed it to have the same meaning and purpose as explained specifically y by Senator Howard. Moreover, the dissent of Justice Field, concurred in by Chief Justice Chase, Justice Swayne, and Justice Bradley, would have struck down the statute on the basis of the 1st section of the Fourteenth Amendment, stating:

… The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government. …

Adding to the importance of the Slaughterhouse Cases decision on the citizenship part is the reference to it as authority in other Supreme Court cases. The decision was a very important case on constitutional law. 

A good example of dictum, if it can even rise to that level, is a statement of the liberal Justice Brennan in his majority opinion in Plyler v. Doe, 457 U.S. 282, 1982,[11] in Footnote 10:

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

The Plyler case was decided under the equal protection part of the Fourteenth Amendment, which has been held in a number of Supreme Court cases to grant protection to both citizens and non-citizens in the country. Brennan's majority opinion stated:

The Fourteenth Amendment provides that "[n]o State shall . . . 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."

That clause of the 14th Amendment is not limited to citizens, and the definition of citizenship is not involved. Allowing protection to an alien does not make him a citizen.  Brennan's decision clearly recognized that:

Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67, 426 U. S. 77 (1976). [Footnote 9] …

We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized  that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:"

"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."

"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws."

Brennan referred to the explanation of Senator Howard:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. 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 will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction."

Here, even Brennan clearly recognizes the difference between affording equal protection of laws to all persons, even aliens, but not citizenship.

Although I consider the above decision wrong, whether it is right or wrong is not relevant to this paper. I consider the case wrong because it infringes on the rights of the states to regulate their affairs, and how they spend their money. It was a five to four decision, with the four more conservative justices dissenting. They were Chief Justice Burger, Justice White, Justice Rehnquist, and Justice O'Connor. Their basis:

Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education. I fully agree that it would be folly -- and wrong -- to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. [Footnote 4/1] However, the Constitution does not constitute us as "Platonic Guardians," nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, 437 U. S. 153, 437 U. S. 194-195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today.

The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. [Footnote 4/2]  

See ante at 457 U. S. 237-238 (POWELL, J., concurring). The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so.

The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures -- or simply the laggard pace -- of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others. …

Without laboring what will undoubtedly seem obvious to many, it simply is not "irrational" for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state.

It is not the function of the Supreme Court to substitute its 'wisdom' for any lack of wisdom of congress.

To hold that a child born in the United States to illegal aliens is a citizen, would mean that all persons born in the United States are automatically citizens, and render the qualifying clause "and subject to the jurisdiction thereof" superfluous and meaningless. That is not how provisions of our Constitution are to be construed, and so far, the United Supreme Court has not rendered a decision that would be that ridiculous.

But what would our present Supreme Court hold? Who knows? We have four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, who are liberals and have no respect whatsoever for our Constitution. They would probably hold that anchor babies are citizens. We have four more conservative justices, Roberts, Scalia, Thomas, and Alito that respect our Constitution and would probably correctly hold that anchor babies are not citizens. What the flip-flopping Kennedy would do is anyone's guess.

It is a disgrace to our country than many of our Supreme Court Justices have rendered decisions based on their political and social views, instead of the law as intended by those who were responsible for its enactment. In selecting a federal judge, and particularly an important appellate judge, we have very divisive hearings, because the President and members of congress are trying to get judges of their own political views. This is particularly true of Supreme Court justices. The only reason for these divisive hearings is that the senators and congressmen know that liberal justices will be influenced in their decisions by their political views. And that is exactly what a liberal wants. Politics and personal views should not enter into a decision. And if judges could be depended on to render their decisions according to the law, with no influence from their own political and social biases, there would be no reason for such divisive hearings. The only interest would be in getting the best honest judge for the job.

What we need is an amendment to our Constitution that would prohibit judges and justices from changing our Constitution to their own personal views, which they have done many times; thereby usurping the rights of the people who have the sole right to change our Constitution. I have recommended a simple amendment that would accomplish that in a book and in an article, both of which are on this website.[12] It would require judges to be judges, and not Super Legislators.

George Washington was our first President, and I consider him the greatest.  He acted as the Chair of the convention that drafted our Constitution of the United States. He clearly stated:

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. (George Washington, Farewell Address, September 19, 1796, The Annals of America, Vol. 3, p. 612, Encyclopaedia Britannia, Inc., 1968)

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[10] Black's Law Dictionary, 5th Ed., 1973.


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