Linda K. Kerber: Can the 14th Amendment Defend Itself?

Roundup: Historians' Take

[Linda K. Kerber is May Brodbeck Professor in the liberal arts, and professor of history, lecturer in law in the Department of History at the University of Iowa. She is also the author of "No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship" (Hill & Wang).]

The 14th Amendment to the U.S. Constitution clearly states that all people born in the United States are citizens. But some Republicans, in their wide-ranging attack on illegal immigrants, treat the amendment as an antique inheritance from the Civil War era that turned into an overly generous gift to generations of immigrants.

They neglect the intentions of its framers -- yes, original intent -- that it be a source of benefits to the nation by securing the allegiance and obligations of all who live here and by ensuring against successive generations without clear national identity....

The framers of the 14th Amendment were not romantics. They had lost their illusions in the Civil War. They were facing a vicious effort by the states of the former Confederacy to undo freedom for African Americans by a wave of laws -- the "black codes" that undermined equal citizenship. It is clear from the records of the debate in 1868 that many members of Congress had to swallow hard before voting, but they knew that without constitutional reinforcement, the South would thumb its collective nose at the Bill of Rights....

Birthright citizenship has protected the U.S. in just the ways its framers intended. We do not contribute to the stupendous growth of a stateless population that floods the globe as refugees, asylum seekers, trafficked persons and irregular migrants. As irregular migration carries more and more people across international boundaries, new restrictions are being added to nationality rules. If such restrictions are added in the United States, they will introduce the very kind of instability the 14th Amendment was meant to prevent.

Whether tinkering with America's strong tradition of birthright citizenship comes in the form of legislation or constitutional amendment, it is ill-advised.

Its framers informally spoke of the 14th as an "amendment to enforce the Bill of Rights." It has long been one of the most robust elements of the Constitution. Now it needs to fight in its own defense against plans to undermine its core provision.

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Lisa Kazmier - 2/18/2011

And your argument fits well as to context and history but I'd like to know how you feel about it applying to women, esp. given the recent efforts to dismantle women's equality and personhood, including Justice Scalia's assertion that the 14th Amendment doesn't apply to women (I thought the 19th Amendment would at least imply that it does).

michael les benedict - 2/18/2011

Nicely put and accurate. Linda points out that congressmen "gulped" before they voted for the citizenship provision of the Fourteenth Amendment. It is worth remembering that the Republican congressmen who established this rule had been, in many cases, nativists. And many would be so again. Despite that, they voted to make all the children of immigrants who had come to the United States citizens, trusting that the power of republican institutions would make them valuable and productive Americans.