Judy Woodruff: Battles Brew Over the 14th Amendment

BY Judy Woodruff  January 6, 2011 at 3:00 PM EST

Draft of 14th Amendment to U.S. Constitution, outlining rights and privileges of citizenship; Hulton Archive/Getty Images

While members of Congress took turns reading the Constitution out loud on the House floor Thursday — a move initiated by the new Republican majority — there’s a serious battle just getting underway over one section of the document that has provided the legal underpinnings of our country for over 200 years. That part is the 14th Amendment, which among other things, guarantees citizenship to anyone born or naturalized on U.S. soil.

A coalition of state legislators has unveiled a plan to change the way the amendment is applied, so that babies born to undocumented aliens receive a different type of birth certificate than children born to parents who are already citizens. Driven by opposition to the growing presence of illegal immigrants in the United States – a number estimated at around 11 million – the group, calling itself State Legislators for Legal Immigration, unveiled a plan to challenge the way the 14th Amendment is being interpreted.

Its founder, Pennsylvania State Rep. Daryl Metcalfe, told reporters at a news conference Wednesday that in his view, under the amendment, “the primary requirements for U.S. citizenship are dependent on total allegiance to America, not mere physical geography.” Seizing on language in the amendment that states,”All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” Metcalfe and the others assert that undocumented immigrants are outside the jurisdiction of U.S. laws.

The Pew Hispanic Center recently estimated that there are 4 million U.S.-born, citizen children of illegal immigrants currently in the country.

Metcalfe and his allies want Congress to pass a law “clarifying” the 14th Amendment so that it can no longer be “misapplied,” in their view. They also advocate states taking action of their own to change birth certificates, according to the legal residence of a baby’s parents.

This view is roundly rejected by a group of constitutional scholars and civil libertarians, who held their own news conference immediately afterward, to discuss the need to “preserve the integrity of the 14th Amendment,” which they called “the cornerstone of American civil rights and the foundation of American identity.” Former U.S. Solicitor General Walter Dellinger said the Supreme Court made it absolutely clear in an 1898 decision, in the aftermath of the abolition of slavery, that birth in the United States is a “fixed, simple, objective rule for citizenship.”

Wade Henderson, the president of the Leadership Conference on Civil and Human Rights, called the effort by the coalition of state legislators, a move to “create two tiers of citizens – a modern-day caste system – with potentially millions of natural-born Americans being treated as somehow less than entitled to the equal protection of the laws.”

The state lawmakers’ group denies the changes they want would lead to young children being deported from the country, but acknowledges their ambition is to get the Supreme Court to rule on whether the 14th Amendment to the Constitution guarantees citizenship to children born here of unlawful immigrant parents. And their founder, Metcalfe, asserts: “Just like any other national policy, America’s immigration laws must protect the lives, liberty and property of American citizens, rather than foreign invaders.”

The battle lines are being drawn: immigration reform advocates who had been pinning their hopes on the expansion of the new Arizona state law SB-1070, which criminalizes the failure to carry immigration papers, are now shifting some of their efforts to the re-interpretation of the 14th Amendment. Kris Kobach, the incoming secretary of state in Kansas and a law professor at the University of Missouri-Kansas City, told The New York Times he is “confident ” the law they wanted enacted “will stand up in court.”

But civil liberties groups are just as determined to stop any such changes from taking place: Lucas Guttentag of the ACLU told reporters Wednesday, “no amount of legislative grandstanding can change what the Constitution says … (if their changes are enacted…) “everyone’s citizenship would be forever up for grabs.”

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