Would you support this as a proposed constitutional amendment?

Question

Here are the words of Section 1 of 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 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.

I say that this should be repealed and replaced. A new amendment should state that children of immigrants who are born in the U.S. are not born with the status of citizenship. And the new amendment would state, far more clearly, what state governments cannot do. The second sentence in Section 1 is far too vague.

I believe that constitutional law should provide a reasonably clear set of guidelines about what government can and cannot do.

To be continued

In place of the Privileges and Immunities Clause, say that states must obey all provisions of the Bill of Rights except for the 2nd, 7th, and 9th amendments, and the Grand Jury Clause of the 5th.

Clarify that the Due Process Clause means exactly what it literally says and that, as Alexander Hamilton once said, it can never be applied to an act of the legislature (or voters). The Clause guarantees fair, standard PROCEDURES, not laws which judges deem acceptable.

Clarify that the Equal Protection Clause means only one thing: RACIAL equality. Not gender, not sexual orientation, not aliens, not equality for persons born out of wedlock, etc., etc.

The Supreme Court has been at its worst when: 1) it enforces "unenumerated rights," and 2) picks out "minorities" other than racial minorites for "heightened protection."

(Or, for that matter, when it steals elections, but that would not change with what I am suggesting.)

"The current state of equal protection and fundamental rights is a travesty. The Court has drifted between different [clauses of the 14th] in deriving these rights as if they were so many coat hooks for the Court to use which-ever one is convenient. The various standards set out by the Court for deriving these rights are so vague as to be virtually useless. ... [T]he Fourteenth Amendment remains a hodgepodge of underdeveloped ideas." -- Evan Gerstmann, "Same-Sex Marriage and the Constitution," (2003) Cambridge University Press, pp 209-210.

Okay, m1a1mike, you've challenged me with a few good questions.

First of all, in general, I am suggesting this out of a desire to return to the original understanding of the 14th Amendment. It was intended to guarantee citizenship to the freed slaves.

In answer to your first scenario, what you are talking about is obviously going to be extremely rare. My answer to that rarified circumstance is that the child would still be recognized as an "immigrant," and I'm sure that Congress could come up with a new federal law to deal with that situation fairly and reasonably.

Second scenario: any child of a person who is a U.S. citizen is a citizen his or her self. One parent is all it takes.

And in answer to your last question, what I "want" is for the amendment to be interpreted according to its original intent, as I indicated.

Answer 1

Okay I agree it should be repealed. The words are wrong.
"person" needs to be changed to legal immigrant. If you come here as a Legal immigrant then it works. But on the other hand if you come here "illegally" and create anchor babies with invites to the entire family, It's all Wrong. Thanks for the argument

Answer 2

1) The Privileges and Immunities Clause is pretty much a dead letter. It really only prevents states from abridging the rights of national citizenship like, for example, travel and the right to petition the federal government. It might be ambiguous, but it's also incredibly narrow. If we replace it with what you suggest (specifying which amendments the state must apply), then how do we know what those amendments mean? Aren't those amendments already incorporated by the 14th Amendment anyway?

2) Here are the problems with original intent: Whose intent counts? If you can go through the history of the passage of the 14th Amendment (or any Amendment or law for that matter), and tell me that there was one, singular intent espoused by everyone involved in its passage, then I'll buy your argument. But you can't, because it's not there. Secondly, while the 14th Amendment certainly granted citizenship to the former slaves, at the time it did little else. Segregation hung around for another 100 or so years. Should we return to that, too? All hail the glory days, I suppose (I'm not suggesting that you are in favor of segregation, but merely raising the point that original intent is a double edged sword).

3) We wouldn't have substantive Due Process if the Privileges and Immunities Clause hadn't been pillaged. Secondly, if our government weren't chomping at the bit to regulate what people do with their own bodies and in their own bedrooms, we wouldn't need substantive Due Process. Given a choice between a rule of law that seems to be all over the place and the government telling me who I can and can't sleep with, I'll take the former on any day.

4) For someone who seems to want to read the 14th Amendment "literally", you are quick to limit the Equal Protection Clause to racial equality. I re-read it a couple of times, and I'm not seeing the word "race" in there anywhere. But I do see the words "any person". If they had wanted to limit it only to race, wouldn't they have done so? If their intent was to limit it to race, wouldn't they have made that clear?

5) I'm not sure where you're getting your "heightened protection" information. Race is the only truly suspect category: everything else gets less scrutiny from the Court. Maybe you could explain a bit more what you mean by this.

6) As for unenumerated rights: I'd like to think that we will not be ruled by the customs and rituals of people who have been dead for several hundred years. Yes, they set up a government that, despite our best efforts, works. Society inevitably changes, and things they (the Framers) never even imagined are now commonplace. To think that we can live under the exact same rules that they created (assuming, of course, that we can even say explicitly what those rules were) seems antiquated and preciously Rockwellian to me. Besides, they included the 9th Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") so that we wouldn't be hamstrung by the vestiges of the past.

7) Finally! Something on which we can agree! The Court stole the election!

8) As for the Gerstmann quote: the 14th Amendment is a hodgepodge of underdeveloped ideas. So let them develop.

9) To the person who said that "polls show most Americans want it changed": Could most Americans even tell you what the 14th Amendment says (literally; not how it has been interpreted, which I think we all agree is all over the place)? I doubt it. Secondly, polls can show whatever you want them to show.

Thanks for posting an interesting question!

Answer 3

How would your law handle the following situation:

A married couple legally immigrates the the US has a child 2 years after arrival but is killed in an auto accident the day before they are scheduled to attend the citizenship ceremony.

What would the status of the child be?

Next situation - an immigrant married to a US citizen. Would the child be a US citizen?

Why would you want to deny citizen status to the US-born children of legal immigrants?

Answer 4

good luck. it wouldn't be like fighting city hall, more like the Marine Corps on a full beach asssult. (no offense intended Marines)

Answer 5

Yes, polls show most Americans want it changed.

Democrats politicians are against because they don't want to lose future voters. Just goes to show you, Democrats don't care about America.

Answer 6

Good idea. You should run for office

Answer 7

No. I wouldn't support it.