Written in the aftermath of the Civil War, the 14th Amendment remains a battleground in the debate over citizenship and rights. Our series on the Constitution Today examines the amendment and how it’s been challenged through history.

Guests

  • Bruce Fein former associate deputy attorney general, Republican counsel during the Iran-contra hearings, and founding partner with the Lichfield Group
  • Sherrilyn Ifill professor, University of Maryland School of Law, co-founder of the Reentry of Ex-Offenders Clinic and author of "On the Courthouse Lawn."
  • Michael Meyerson professor of law at the University of Baltimore and author of "Liberty's Blueprint" and "Political Numeracy."

Transcript

  • 11:06:55

    MS. DIANE REHMThanks for joining us, I'm Diane Rehm. Some scholars consider the 14th Amendment the most important constitutional change in the nation's history since the Bill of Rights. Ratified after the Civil War, it transformed the definitions of U.S. citizenship, as well as relations between the federal government and the states and between individual Americans and the nation.

  • 11:07:28

    MS. DIANE REHMJoining me in the studio to examine the 14th Amendment, as part of our series "The Constitution Today," Bruce Fein, he's founding partner with the Litchfield Group, he is former associate deputy attorney general and Republican council during the Iran-contra hearings, Sherrilyn Ifall, she's professor at the University of Maryland School of Law and Michael Meyerson, he's professor of law at the University of Baltimore. I do welcome your calls, your comments and questions on this very important discussion, considering the kinds of questions being raised today and what is actually contained in this 14th Amendment.

  • 11:08:31

    MS. DIANE REHMJoin us on the phone, 800-433-8850, send us an e-mail to drshow@wamu.org, join us on Facebook or send us a tweet. Good morning to all of you.

  • 11:08:50

    MR. MICHAEL MEYERSONGood morning.

  • 11:08:50

    MS. SHERRILYN IFILLGood morning.

  • 11:08:50

    MR. BRUCE FEINThank you, Diane.

  • 11:08:51

    REHMBruce Fein, if I could start with you, describe for us the political climate that existed at the time the 14th Amendment came into being.

  • 11:09:02

    FEINYes. And that, for the audience, was 1868, but I think there're four things to keep in mind in trying to understand the dynamic behind the Amendment. First, early on, the United States Supreme Court had held that the Bill of Rights, those that we customarily associate with protecting us against kangaroo courts, coerce confessions, torture, right to compensation for taking of property, that kind of thing. Freedom of speech, freedom of press, that those Bill of Rights applied only to the federal government, rather than to state governments. This was a case in 1833.

  • 11:09:38

    FEINThe second thing to keep in mind is in 1857, the United States Supreme Court held in the Dred Scott vs. Sanford that blacks could not be citizens of the Unites States, even in free states. And the 14th Amendment was a response that two of those decisions -- also, you need to remember that prior to the Amendment's ratification, the president of the United States had vetoed a Civil Rights Act of 1866 that sought by Congressional statutory action to extend some of these civil rights to freedmen, those who had been emancipated from the Civil War period. And that was vetoed, the veto is not overridden.

  • 11:10:12

    FEINAnd then lastly, you have to recognize that those who are in power in Congress -- and remember, it was Congress that proposes the Amendment by two-thirds vote and then it goes to the states for ratification. It was dominated by radical Republicans who had a great distrust of the South, that the southern states were not respectful of what they thought were fundamental human rights and so a major purpose of the 14th Amendment was to overcome that kind of suspicion and given that dynamic background, you can understand why the very first portion of the 14th Amendment says, if you're born in the United States and subject to the jurisdiction your of, you're a citizen. Overcomes the Dred Scott decision.

  • 11:10:47

    FEINAnd also, those who are primary champions of the drafting, like Jonathan Bingham, said that a major goal of the 14th Amendment was to apply to the states the Bill of Rights that previously applied to the federal government.

  • 11:10:56

    REHMAnd Michael Meyerson, you said the 14th Amendment actually completed the work of the Constitution. How so?

  • 11:11:06

    MEYERSONWell, when the original Constitution was drafted, it does apply just to the federal government. And there was always a question of, can the states protect their citizen, can the states protect liberty? And James Madison was actually very, very suspicious, so in his Bill of Rights that he proposed, he wanted to limit states abilities. He wanted the states to not be able to limit freedom of religion and freedom of speech and at the time, the feeling that the states need autonomy was so strong, that particular proposal was rejected. So when the 14th Amendment was ratified, it unified the nation by applying a similar rule in terms of essentially, what does it mean to be an American? Both how do you become a citizen and what are the inherent rights of freedom?

  • 11:11:45

    REHMAnd Sherrilyn, the reasoning behind the first section of that Amendment, do you have it there?

  • 11:11:53

    IFILLWell, I have a kind of a sketch of it.

  • 11:11:57

    REHMGood.

  • 11:11:58

    IFILLThe birthrights citizenship part, which is in section one, says that any person born in the Unites States and subject to its jurisdiction shall be a citizen of the United States and the state in which they were born as well. And that's because as Bruce already said, it was necessary to overcome the decision in the Dred Scott case, in which Chief Justice Taney, writing for the Supreme Court, said not only that a slave could not be a citizen for purposes of challenging this law that held him enslaved in federal court, but even free blacks were not citizens of the United States.

  • 11:12:36

    IFILLAnd so this provision of the 14th Amendment, the birthright citizenship provision that has been the subject of such controversy over the last year for other reasons, actually overturned the Dred Scott decision and ensures that blacks, both free and formerly enslaved, are citizens of the United States so long as they were born in the United States.

  • 11:12:53

    IFILLSherrilyn Ifall, she's professor at the University of Maryland School of Law, she writes for theroot.com, she's author of "On the Courthouse Lawn." Do join us, 800-433-8850. Sherrilyn, some states are pushing today for a court ruling on the birthright citizenship. Tell me about their strategy and what's behind it.

  • 11:13:25

    IFILLWell, I'm not fully familiar with all of their arguments. The principle one is that the words in section one of the 14th Amendment, they argue where it says, born in the United States and subject to its jurisdiction, are somehow words that authorize Congress to, in some way, limit the birthright citizenship provision in the Constitution. That's just happens to be an incorrect reading of the Constitution and in fact, it's one of the reasons why simply reading the words of the document are not enough to help you understand it.

  • 11:14:01

    IFILLThere's a long tradition, a common law tradition, that came even before the passage of the 14th Amendment, and that has been referred to by the Supreme Court in subsequent decisions, interpreting the birthright citizen provision in which we understand what those words, and subject to its jurisdiction means. And what that really referred to was something that we all know, which is, for example, that the children, for example, of a foreign ambassador who are born on this soil are not subject to the jurisdiction of the United States because, as you know, an embassy essentially constitutes that country, right on our soil.

  • 11:14:39

    IFILLAnd that had always been the tradition, even going back to England, which is, of course, where our common law comes from. So that subject to its jurisdiction was not meant to disturb that reality about citizenship that was recognized, that if you were the child of a foreign ambassador or a console or a minister who was born in that country, you are not subject to the sovereign or not subject, in this case, to the United States, and therefore you are not a citizen of the United States. It was not meant to in some way cancel out the first part which says, if you're born here, you're a citizen, nor was it meant to authorize Congress to limit that birthright citizenship.

  • 11:15:13

    IFILLAnd the Supreme Court said this in a case involving the child of two Chinese immigrants at the time when Chinese were not allowed to be citizens -- Chinese immigrants, were not allowed to be citizens of the United States. They had a -- two Chinese immigrants had a child who was born in the United States, that child grew up, traveled outside the country, returned to the country for business purposes and was excluded on the grounds that they were not a citizen. He brought the case to the Supreme Court and the Supreme Court said, he was born here, he has entitlement to that birthright citizenship.

  • 11:15:45

    REHMBruce.

  • 11:15:45

    FEINDiane, I think it's a little more pernicious even than articulated in the sense that the states are suggesting that the states themselves can create two classes of citizenship, just not Congress. And it's part of this whole idea as well that the states should be able to nullify a federal law, like the Federal Civil Rights Act or even a tax law and the idea of succession that surfaced during the last campaign. And this is just flagrantly unconstitutional. The Supreme Court has said repeatedly, there's no two classes of citizenship in the United States. You know, in this country, there's only one class and that's American.

  • 11:16:21

    REHMMichael Meyerson, Andrew Johnson vetoed the 14th Amendment. Then what happened?

  • 11:16:30

    MEYERSONWell, he didn't actually veto the Amendment, he vetoed the Civil Rights law before the Amendment and what Congress essentially decided is, we don't need him, because to have an Amendment passed, the president has no specific role in it. So actually, what they did with the 14th Amendment was get, if you will, greedier. You know, in terms, they were more radical, they could do more things 'cause they were trying earlier to appease President Johnson. And when they realized they'd never appease him, the 14th Amendment therefore, with a much broader Amendment than the original Civil Rights Act, much clearer language, much, much less equivocal in a lot of its promises.

  • 11:17:00

    REHMSo there were politicians who clearly didn't think it went far enough?

  • 11:17:07

    MEYERSONOne of the things that even now, if you listen to the discussion, where we fighting the Civil War? The whole question is, what was the Civil War about? Was it about slavery, was it about equality, was it about turning people into Americans? And in fact, that battle was going on in 1866 and you had the President Johnson and the Democrats at the time thinking it was just end slavery, bring the South back and it's all over. And then you had the other, the radical Republicans saying, no, the real problem is you had people being treated like second-class citizens, you had people -- we weren't united as a nation. And I think the battle over the 14th Amendment was to make the nation one with no second-class citizenship.

  • 11:17:42

    IFILLIt's so important to remember that, Diane, to -- you talked about the conditions during this period. I mean, the United States had just come through the most brutal war that we have ever seen in terms of the loss of life and so forth and, you know, one commentator said, you know, you should see the 14th Amendment as a peace treaty, as statement of legal principle about who we were to be going forward, but during this period, there was still tremendous resistance from many in the South and therefore, many in the North were still very concerned about this idea of disloyalty and preserving the Union. And the 14th Amendment really seeks to, at the loftiest levels, preserve the Union.

  • 11:18:20

    REHMSherrilyn Ifall, she's professor at the University of Maryland. She writes for theroot.com. Bruce Fein is former associate deputy attorney general, Michael Meyerson is professor of law at the University of Maryland at Baltimore, author of "Liberty's Blueprint" and "Political Numeracy." Short break, right back.

  • 11:20:03

    REHMAnd we're back with our "Constitution Today Series," this week talking about the 14th Amendment. I'm going to read for you, because a number of you have asked us to, the first section. The 14th Amendment is rather long and would take up a fair amount of time. I'll read for you the first section, which states, "All persons born or naturalized in the U.S. 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 to deny to any person within its jurisdiction the equal protection of the laws."

  • 11:21:17

    REHMNow, Sherrilyn, you feel the second portion of that amendment is equally important.

  • 11:21:25

    IFILLWell, I wouldn't say equally, but it is important because it does a couple of things. It includes something that tells us something about the times. It's a punishment section for southern states that are continuing or planning to deny the right to vote to freed men. And it essentially says that the representation of any state that refuses to allow black males over the age of 21 to vote, that their representation will be reduced by the number of people they don't allow to vote.

  • 11:21:57

    IFILLAnd it includes two exceptions. It says, except if they deny the right to vote for those who participated in rebellion or other crime. And that language -- the other crime language is the language that has been used by a number of states, the majority of states in the United States, that keep ex-felons, those who have been convicted of crimes, served their time and left prison, from voting in a number of states.

  • 11:22:22

    REHMSo that leaves a large percentage of black males who have been convicted of felony crimes from voting.

  • 11:22:33

    IFILLAnd considering the prison population in the United States and the disproportionate number of African American men who served time in prison for felonies, it's estimated that 13 percent of black men in the United States are disenfranchised because of that provision.

  • 11:22:47

    REHMMichael Meyerson.

  • 11:22:48

    MEYERSONOne other aspect about section two of the 14th Amendment that it limited concern to male voting. And, in fact, there were women who oppose the 14th Amendment that seemed to codify keeping women from voting. It's actually the first time there's really expressed sex discrimination in the Constitution, it actually slowed down the movement towards women's votes.

  • 11:23:06

    REHMAnd didn't...

  • 11:23:06

    FEINBut that also happened with regard to the 15th Amendment, which specifically prohibited discrimination on the basis of race, but it did not prohibit discrimination on the basis of gender. And their Suffrage Movement for women also opposed that because they were left in the lurch. Now, one thing I do want to -- it just shows that there are politics that work in all of these great historical landmarks, but I think it's important to note a couple of things. One, the Supreme Court has made clear that if a state categorizes certain crimes as triggering disenfranchment because they believe blacks are likely to be the greatest perpetrators, if they have that racial intent behind it, the court has held those invalid, but that still leaves a lot of room for discretion.

  • 11:23:45

    FEINBut the other element I think that's very important here, when we think about the 14th amendment and the consensus, at the time, it still was a very fragile consensus. In order to obtain a ratification, the Congress said that a state that had been outside of the Union during the Confederacy could come back in and be recognized only if it ratified the amendment. So it had a sort of Damocles over its head. If you don't ratify you're not coming back into the union.

  • 11:24:09

    FEINAnd in fact, the fragility of the consensus was shown because reconstruction ended after the Rutherford B. Hayes presidency beating Samuel Tilden with this great compromise. And despite the clarity of the purpose of the 14th Amendment to end the idea of racial distinctions, by 1896, the Supreme Court was saying separate but equal is okay. And then we're another 50 some years before we're Brown against the Board of Education.

  • 11:24:32

    REHMRight.

  • 11:24:32

    FEINThis is why the audience needs to know, ultimately, that juror's prudence and what those words mean are going to be what the culture says it's got to mean. If you don't participate in the civic, leave your imprint upon the ideas of fairness and justice, somebody else will and it'll find its way into the law.

  • 11:24:47

    REHMAnd Sherrilyn, Supreme Court Justice Antonin Scalia, recently pointed out, the promise of equal protection in the 14th Amendment does not apply to women.

  • 11:25:01

    IFILLYes, he did say that and it's a good thing that we have nine Supreme Court Justices and (laugh) not just one. I mean, essentially, what he's saying is that the words do not appear in the Constitution, but there are many things that we regard as our constitutional rights, and we don't even have enough time on this show to list them all, that are not specifically stated in the Constitution, whether it's the right to travel or the right to marry.

  • 11:25:21

    IFILLYou know, it would be interesting to hear Justice Scalia expound on Loving vs. Virginia, that's the 1967 Supreme Court decision in which the Supreme Court said that, you know, states cannot have laws that outlaw interracial marriage. That's not said anywhere in the Constitution, so there's a number of things that are not explicitly stated. And again, this goes back to the earlier point about why just reading the document itself as Congress did -- or the House did the other day...

  • 11:25:44

    REHMExcluding some portions.

  • 11:25:45

    IFILL...is simply not enough. Or the redacted version. They read the happy Constitution...

  • 11:25:47

    REHMYeah.

  • 11:25:47

    IFILL...not the part that we had to involve.

  • 11:25:48

    FEINBut I think you've got to start with the language even though that's not the endpoint. And if you start with the language, what does it say? It says no person, no person shall be denied the protection of the laws. Now, I didn't think it’s a pickwicky in interpretation of person to say, hey, that includes women as well as men. If a woman committed a crime they'd be prosecuted as a person. They wouldn't be exempt, so how you get away from the idea that women or other categories aren't persons seems to be a total torture of the plain meaning of the word.

  • 11:26:18

    REHMAnd do you think, Sherrilyn, that this could push to resurrect the ERA Amendment?

  • 11:26:27

    IFILLI don't think so. I think that the culture has moved too far at this point to take on this idea that Justice Scalia has presented. And I just think we've moved away from that moment.

  • 11:26:38

    REHMWhy would he do that, Michael?

  • 11:26:41

    MEYERSONWell, I think his basic philosophy is the Constitution means what it meant, what it meant back at the framing time. And he's right about one thing. I mean, it's not just the language, which actually works against him. I would argue if you ask most of the people framing the 14th Amendment, are women equal to men, they'd all say no. In fact, there's dialogue about sort of them laughing that no one would think that, you know, mature manhood with the definition of who should be able to vote. But the real battle is since you have a word like equal protection, do you limit it to the understanding of the 1860s or can you say we now understand that equal means including women? And so it's really a battle of are we allowed to have a greater understanding of these broad general principles?

  • 11:27:24

    REHMTalk about a living document, Bruce.

  • 11:27:27

    FEINWell, I don't know whether I'd call it living 'cause we're still starting out with the words. That seems to me to give too much unlimited discretion. We don't have the justices like people in cyclicals just saying, this is what, you know, the gospel means today, but surely we need to recognize that politicians, especially in Congress, are very hypocritical. They can write one thing and mean another. And so why -- when you're getting into this idea will this person include women or not, well, you just read it. If they don't have the integrity in publicizing, no, we don't want person to mean women, then they should write that in there.

  • 11:28:02

    FEINAnd we know all the time that people have opposite ideas that cohabits in their brains and therefore, it's very difficult to say, well, we know what the consensus was out there. It may not be a consensus. It may be two things at the same time, so you've got to stick with the natural reading of the language and understanding it was getting at invidious discrimination.

  • 11:28:20

    REHMBut how does the Due Process Clause, how does it shape the society we live in today?

  • 11:28:30

    FEINWell, it has enormous impact on it in light of how it's been interpreted. We need to go back just a little bit and think what -- Due Process ordinarily talks about process, not procedure. Things like, can you be compelled to testify against yourself, do you have a right to cross-examine a witness against you? Do you have a right to a speedy trial and things of that? It ordinarily doesn't deal with substance. And in fact, if you go back and examine the history of the 14th Amendment, it was really the privileges and immunities clause that was intended to incorporate these substantive Bill of Rights protections against the state.

  • 11:29:03

    FEINBut for whatever reasons, the U.S. Supreme Court early on, in a case called the Slaughter House Cases, decided to turn the privileges immunities clause into an inkblot. And so they end up with the Due Process Clause, which has been used to incorporate substantive rights like the right to an abortion, if you will, the Roe v. Wade kind of decision or the right to marry, if you will. And those kinds of rights that the justices have thought are fundamentals. Some of them disagree on what is fundamental or not, but that's how due process is entered into the current modern equation.

  • 11:29:35

    REHMAnd you haven't mentioned gun rights, but why was the 14th Amendment important in the landmark gun rights case in Chicago, McDonald v. Chicago, Michael Meyerson?

  • 11:29:50

    MEYERSONThe Supreme Court has said that the rights that apply to the states through the Due Process Clause are those implicit in the concept of ordered liberty. What does it mean to be implicit in the concept of ordered liberty? What does it mean to be a free person? And the Supreme Court by a five-four vote ruled that the ability to defend oneself was understood at the framing of the Constitution and the 14th Amendment as part of that freedom. Now, we're talking that it's not necessarily the right to have a machine gun or not right to have any of that stuff that you've been talking about earlier this morning, but there is, within the realm of sort of history, a sense that one of the things it means to be a free American is the ability to defend oneself.

  • 11:30:28

    FEINBut if that were true, then you'd feel at the outset, why didn't the Bill of Rights apply the Second Amendment to the states? You had, you know, all these decades elapse and I don't know whether individuals being slaughtered out there because they didn't have the right to keep and bear arms against the state government. It shows, in my judgment, a lot of incoherence and when the court decides to embrace a Bill of Rights and apply it to the states and when it does not. It's a lot of it is just whimsy and how the court justices line up with regard to the political philosophy.

  • 11:30:55

    REHMAnd the 14th Amendment was also used to justify Supreme Court's decision in Bush v. Gore. How did that happen, Sherrilyn?

  • 11:31:06

    IFILLWell, it's one of the most, I think, extraordinary decisions to come from the United States Supreme Court. I can remember the semester when Bush v. Gore happened. I happened to be teaching a voting rights course. And so, of course, once the election happened, we threw out the syllabus and now we were only focused on the contested election and it was fascinating. And we had all the statues at hand and so forth. And when the argument came up by the Bush lawyers that the Florida recount violated the equal protection rights of candidate Bush, we looked at all the materials, but we thought that was the most ludicrous argument we'd ever heard. And yet that was the argument that ultimately won the day.

  • 11:31:43

    IFILLNow, of course, the Supreme Court, recognizing that this argument was an extraordinary one to make in this context, essentially said, and it only applies to this case, that it only applies to this particularly exigent circumstance of this contested election in which if we don't resolve it soon, you know, somehow the sky is going to fall in. And so it doesn't stand, it doesn't have precedential value for anything else, but it shows, as Bruce Fein was suggesting, the way in which you can manipulate this and in which even Justice Scalia, for example, is willing to manipulate the language.

  • 11:32:13

    FEINWell, if we go to the particular facts of the case, the court was saying that the standards to decide whether a hanging chad was a vote or not, that it reflected the intent of the voter to vote XYZ was standardless. It depended upon whether your heart fluttered for Bush or Gore at the time you looked at it. And that kind of arbitrariness violated the equal protection clause because there was no equal treatment of voters depending upon what their hanging chads looked like. Now, it was a rather odd decision because those kinds of differentials occur all the time in ascertaining, I suppose, the intent of the voter.

  • 11:32:47

    FEINBut this one I think was particularly pernicious because those who were doing the counting, they were elected Republicans or Democrats. So you could imagine, you're doing the recount of the hanging chad and you can see whether it's gonna be a Bush or a Gore and you're a Democrat or Republican. You know what you're likely to count one way or the other.

  • 11:33:03

    REHMBruce Fein, former associate deputy attorney general. You're listening to "The Diane Rehm Show." We're going to open the phones. I know many of our listeners want to take part. First to Birmingham, Ala. Good morning, Sam, you're on the air.

  • 11:33:24

    SAMGood morning. The 13th Amendment was ratified by the southern state delegations, is that correct?

  • 11:33:33

    FEINWell, the Amendments have to be ratified by three-quarters of the states, so that doesn't mean all of the states...

  • 11:33:40

    SAMRight. And the southern delegations were needed for that action, is that correct?

  • 11:33:43

    FEINWell, some of the southern states were needed to make the three-fourth benchmark and that's why...

  • 11:33:47

    SAMRight, all right. So they ratified the 13th Amendment. The 14th Amendment came along and the majority of the southern states were opposed to that, so they threw those delegations out and had the carpetbagger governors appoint senators. It's strictly illegal. Nothing in the Constitution had any shape, form or fashion to legalize that.

  • 11:34:13

    FEINWell, I think you're incorrect...

  • 11:34:14

    SAMAnd give me the number of states that ratified.

  • 11:34:18

    FEINNo. The states are three-quarters of the total number of states at the time. It's the state legislatures that ratify a Constitutional amendment, not a Senator sitting in the U.S. Senate. It's true to propose an amendment you need two-thirds of the vote of the Senate and two-thirds of the votes of the House, but it was the state legislatures and indeed you could imagine at that particular time there was some chaos. There was a lot of violence against those who wanted to come back into the Union, perpetrated by those unreconciled who had served in the Confederate Forces of America. But I think the Constitution allows Congress to decide, you know, election results and they decided who was properly representing the states and it's done that way 100 years hence.

  • 11:34:58

    REHMAll right. To Tolleson, Ariz. Good morning, Gordon.

  • 11:35:04

    GORDONGood morning. I just wanted to comment that Justice Scalia's take on the 14th Amendment is typical of his version of originalism, which basically consists of ignoring what the document actually says. You have to start in any analysis with the text of the document. Your commentators are correct that you often have to go beyond that to understand it, but you have to start with the plain text. Where it says no state can deny to any person the equal protection of the law, it means any person, not just any male person or any black person. There's no footnote exception to the 14th Amendment.

  • 11:35:41

    GORDONSecond, I also want to point out that the point made about Bush versus Gore, the decision saying it's not to be a precedent is actually the most appalling part of that decision because it is the restriction of precedent the fact that what a court says today could return to haunt them tomorrow, that is the true and ultimate restriction on the power of the judges. Do away with precedent and you do have judicial tyranny.

  • 11:36:07

    REHMSherrilyn.

  • 11:36:07

    IFILLI think the caller makes excellent points. I would also point out that it's quite fascinating that the Constitution does not ever use the word corporation and does not talk about the protection of corporations. And yet, as we all know, for example, from the Citizens United Decision, that corporations have actually found expansive protection under the Constitution, particularly under the 14th Amendment.

  • 11:36:29

    IFILLThey also now have First Amendment rights, of course. And in fact, in the first 50 years following the passage of the 14th Amendment, it was most expansively used for the protection of corporations and actually, quite restrictively applied to African Americans. And so corporations have benefited tremendously from the Constitution and from the 14th Amendment operating on the theory that corporations are persons, as we know from the Citizens United Decision, with the full rights of a person against the state.

  • 11:36:56

    IFILLAnd so here's another example of where if you even look at the language of the Constitution, it doesn't use the word corporation. And yet even Justice Scalia has voted for the protection of corporations under the Constitution.

  • 11:37:07

    MEYERSONI just want to sort of add a touch of humility here because I think so many of the words aren't self-defining. So the phrase equal protection doesn't instantly tell us the answer to all these questions. And whether you want an expansive view, you could be liberal in a gay rights case or conservative in Bush v. Gore, the words just aren't self-defining. I think you do need to do more.

  • 11:37:26

    FEINYeah, but I want to underscore this element, if I could, sorry, about the decisions of the court on -- well, I'll (unintelligible).

  • 11:37:35

    REHMWe'll come back to that. Michael Meyerson is professor of law at the University of Baltimore. Short break and right back.

  • 11:40:03

    REHMAnd we're back with our series, "The Constitution Today." Today, focusing on the 14th Amendment. Let’s go to Clayton, NC. Good morning, Marina, you're on the air.

  • 11:40:20

    MARINAGood morning. I think that the birthright citizenship should be preserved. Children born to illegal immigrants are now serving in the military alongside Caucasians and African-American soldiers. And also a child should not be punished for his parents' immigration status, and chances, are they're going to be living in the United States throughout all their lives and they become as American as apple pie. Thank you.

  • 11:40:48

    MEYERSONI think that's a good point. I think basically if you go back to the 14th Amendment and the Civil War and ending the idea of slavery going, passing, that if a mother had a kid who was a slave, the child was a slave. We’re saying something different now and I think the citizenship amendment said that, which that if you are born here, you are part of us, you are part of the American dream.

  • 11:41:07

    FEINWell, there's a ramification that unsettles some people and that is if you have, then, the child a citizen, their preferences about immigration that apply to the parents, and it's thought, well, you're creating an incentive then for illegal aliens, because they'll come, they'll give birth, then they'll have a sibling who is, I mean, a child who is a citizen and then they'll come and piggyback on the child that's now a citizen.

  • 11:41:30

    FEINBut Congress can take care of that. They don't need to require preferences of those who are illegally in the country at the time they give birth. But I do think that birthright citizenship is a symbol of the understanding of the United States that we're all united by a commit to certain values. Certain ideas and philosophy of life and how we wish to communicate and participate in a political community.

  • 11:41:52

    FEINAnd that transcends everything else. Who our parents are, what our religion is, what our race is or what our gender is. There's only one kind of citizen in the United States, it's American, and it seems to me it would be a very terrible idea to eliminate birthright citizenship and end that symbol of unity that's been so powerful.

  • 11:42:09

    REHMSherrilyn?

  • 11:42:10

    IFILLWhat's so fascinating, Diane, is that in fact this is what distinguishes the United States from countries in Europe, for example. Because of birthright citizenship, we have actually had greater success with the project of diversity in the United States than many other European countries have, where their citizenship is dependent on whether or not your parents were citizens of the country.

  • 11:42:34

    IFILLAnd in this country, we've been able, whether we're talking about Italian immigrants, Irish immigrants, Latino immigrants, that by the second generation, those children being American means that their allegiance, their culture, their sense of where they belong has shifted to this country and it's part of what makes this country unique.

  • 11:42:54

    IFILLIt's why we're such a diverse country and why we're so successful at diversity in ways that European countries, which have kind of permanent classes of individuals who are resident workers but who have never been fully German, for example, if we're talking about Turkish immigrants. That's the problem that they have in many European countries with immigration that we don't have and we should recognize that.

  • 11:43:16

    REHMLet's go to Warrenton, Va. Good morning, Barbara.

  • 11:43:22

    BARBARAYes, I would like to draw our attention back to the Declaration of Independence, if we want to go back to basic intentions. One of the grievances against the King of Great Britain that was listed, and I'll quote it, “he has endeavored to prevent the population of these states for that purpose obstructing the laws for naturalization of foreigners, refusing to pass others to encourage their migration hither.” So one of the reasons that we became an independent nation was because we objected to the King of England preventing us from naturalizing foreigners and inviting immigration.

  • 11:43:55

    REHMBruce.

  • 11:43:56

    FEINWell, that's exactly right and I do think it shows how at that time, as well, the colonists were imbued with this idea that the unity was a unity of philosophy and ideas and commitment to those philosophical understandings of the declaration and it wasn't anything else that made us different than Great Britain, that was for sure.

  • 11:44:16

    REHMAnd to Veldusta, Ga. Good morning, Jake.

  • 11:44:21

    JAKEGood morning, yes, this is a little bit of tangent, but I just had kind of a question about representatives of Congress writing themselves exempt from the laws. And if this sort of creates a different class of citizenship as you were talking about earlier and how the 14th Amendment would apply to that?

  • 11:44:41

    REHMMichael?

  • 11:44:42

    MEYERSONWell, James Madison was very concerned. He wanted the lawmakers to be governed by the laws. In a way, it's the heart of the equal protection clause. On the other hand, Congress has often exempted themselves from, say, equal employment laws and it was, took a statute actually to change that. To have them play by the same rules the rest of us do.

  • 11:45:00

    FEINAnd there's also another element that the Constitution does endow members with privileges and immunities from being questioned in any other place for legislative acts. It doesn't include everything. But that was a privilege, if you will, designed to solidify the robustness and independence of the legislature from a possibly tyrannical executive or judicial branch, and if anything, today, despite all of the scandal and the rascality in Congress, it needs greater virility, not its current effeteness which leads us largely to one branch government.

  • 11:45:33

    REHMHere is an e-mail from Susan. She says, “I have a question about how the 14th Amendment might have been applied between 1907 and 1922 during which time a female native born U.S. citizen could lose her citizenship if she married a foreign born man due to the law of coverture, but could regain citizenship if he naturalized. I found an historical newspaper account of an American woman whose U.S. born child was taken from her, sent to Germany to live upon the death of her German born husband. Could the 14th Amendment have trumped coverture immigration laws for custody of that child?” Explain coverture, Bruce.

  • 11:46:36

    FEINWell, I, that's rights between husbands and wives that, I'm not sure how it relates to citizenship. What I can say is that in 1967 in a case called the Afroyim against Rusk, the United States held, government was powerless, powerless to strip you of citizenship unless you voluntarily renounced it. So that all of these previous efforts that Congress had undertaken to give certain conditions, you could forfeit your citizenship under certain circumstances, that was all held to violate your entitlement to citizenship without voluntary renunciation. Didn't mean that because you're a citizen you can violate the laws, but you didn't become stateless.

  • 11:47:18

    REHMLet's go to Springhill, Fl. Good morning, Joy.

  • 11:47:23

    JOYGood morning. I'm calling, I guess, I have a statement and it is, I think all of this discussion about the 14th Amendment these days is only because of President Obama. Because the people who believe he's not a citizen, and I think this is why this current, you know, argument is going on.

  • 11:47:47

    REHMDo you believe that, Michael?

  • 11:47:48

    MEYERSONI don’t think so actually. I think that's part of it, but I think the discussion about immigration's been going on for more than decade and I think it's an incredibly emotional one and it actually ties into our early discussion, which is, what does it mean to be an American? Who gets to play? And I think if you listen to people who are very much opposed to what they call illegal immigration, it's an incredibly emotional issue, very personal to them, defining their country.

  • 11:48:12

    IFILLAt the same time I think the caller has tapped into something that I think is very important and has been true for as long as I think blacks have been here in the United States, which is since the very beginning. And that is this question about legitimacy, being a legitimate American citizen. And blacks, even though citizens, have long fought against this idea of somehow being illegitimate, and so I think these attacks on President Obama, this idea that somehow we just can't be sure he's one of us, is very much racially coded.

  • 11:48:45

    IFILLI think it would be naïve to pretend that it's not and it has therefore revived this conversation about birthright citizenship and it's now veiled under looking at birthright citizenship. But it is fundamentally about race and about a certain discomfort about race that I think has long been part of this question of who can be a citizen of this country and who cannot?

  • 11:49:06

    REHMTo Lancaster, Pa. Good morning, Cathy.

  • 11:49:12

    CATHYHi, our economy needs these young people. It's one of our advantages. China, Japan, Europe, those are all societies aging much more rapidly than ours. We can't deny citizenship to young people who are accomplishing their goals in this country. We need them and so I think that the birthright citizenship is very important. And that's all.

  • 11:49:34

    REHMAll right. Cathy, thanks for calling. Here's another view from Craig, in Charlotte, Nc. Good morning, Craig.

  • 11:49:44

    CRAIGGood morning. I love your show.

  • 11:49:45

    REHMThank you.

  • 11:49:46

    CRAIGI just have a couple of questions for the participants there. One is that I think the intent of a law is as important as what the words say themselves. So one, if the intent of the law is passed to promote illegal immigration and to make citizens of the children born from illegals there? The second one is, isn't there a basic premise about you can't have a legal act from, a legal consequence from an illegal act, and before you start, very proud of the 14th Amendment and very proud of our diversity.

  • 11:50:21

    REHMThank you so much for calling. Michael?

  • 11:50:23

    MEYERSONI think, I'll take the first part of his question, which is simply that the concept of illegal immigration wasn't in the mindset of Americans at the time the 14th Amendment was passed or ratified. There was no law banning. There were no illegal aliens at the time. It wasn't a concept until later on. We had much more open borders. And I think what you want to remember is that America's always been of two minds. We need immigrants, we're afraid of people who don't look like us, and that tension's been going on since the very, very beginning.

  • 11:50:50

    REHMSherrilyn?

  • 11:50:51

    IFILLIt's also interesting to note that in the debates about the birthright citizenship portion of the Constitution and about section one in general, there was this discussion about, you know, fear of the Chinese, who at this time were a very much despised group. And the framers overcame that to say if you're born here, they overcame the objections raised by some who said, wouldn't this mean that, you know, God forbid, you know, quoting the people in those days who were against it, that Chinese might be citizens and the framers were clear that not the Chinese immigrant, but if you were born here, they were not willing to change the language to somehow exclude.

  • 11:51:31

    MEYERSONAnd, Diane, just remember, it was those Chinese immigrants who built the Union Pacific railroad and helped win the Civil War, and we had no reluctance at all to using that very arduous labor. Now, with regard to the idea that you can't have anything legal from an illegal act. Well, the fact is, the law makes exceptions for everything.

  • 11:51:50

    MEYERSONThere are certain kinds of things that might be stolen, but if you're a good faith purchaser that go ahead and pay proper value, you can acquire a good title to something even if its origins may be illicit. So it's a balancing of equities here, and again the problem that I think the caller has in his analysis, it would suggest that if you're the child of an illegitimate relationship then you shouldn't have any rights because then you're giving rights, you know, legal rights to something that came from something that violated laws against fornication or whatever, wedlock out of birth. And here we certainly have a very ingrained understanding that you should not punish children because their parents did something wrong.

  • 11:52:31

    REHMThat's it. All right. To Little Rock, Ark. Good morning, Cal.

  • 11:52:38

    CALYes, well Diane, I had a question that concerned a comment that one of your commentators made today about the example of an ambassador's child, of not being a citizen, if they're born in the United States. Well, my question is, under the 14th Amendment, it talks about subject to jurisdiction thereof. I always thought that jurisdiction dealt with law. In other words, you can't exercise jurisdiction other than through the law.

  • 11:53:02

    REHMSherrilyn?

  • 11:53:03

    IFILLWell again, this is why I say it's so important and the Supreme Court has set this out and interpreting this part of the Constitution. That it's important to know what was the context of the law before the framers even wrote that language and at common law, that's what this meant. Jurisdiction in the United States, essentially the translation would be subject to the sovereign if we were talking about England.

  • 11:53:24

    IFILLAnd so, meaning subject to the country, subject to allegiance to or oath to the country, and of course an ambassador keeps their oath to their country and so therefore their child who was born of them, who is really not subject to this country in allegiance, is therefore exempted.

  • 11:53:39

    REHMBut do they have a choice then? Could they, could that child choose to become a citizen of this country or indeed have dual citizenship?

  • 11:53:51

    IFILLThat's a good question. I'm not familiar with...

  • 11:53:53

    REHMMy husband was born in Paris. He, until he was 18, but he was born of American parents living in Paris. Until he was 18, he had dual citizenship.

  • 11:54:09

    FEINYes, states can permit that. It’s not required. The United States does permit dual citizenship, but your foremost allegiance has to be to the United States and if another state will permit that allegiance, you can have dual citizenship.

  • 11:54:21

    REHMBruce Fein, and you're listening to the ''The Diane Rehm Show.'' And to Fredrick, Md. Good morning, Phil.

  • 11:54:30

    PHILGood morning. On the ambassador thing, just real quick, I was wondering if that had to do with diplomatic immunity, but my real question was, too, I think, Sherrilyn earlier and the idea that corporations have snuck under the 14th Amendment and I want her to, please for the public out there, to maybe be more specific on what the basis was for those corporations over the years to gain that status, even though it says ''the person'' quote, or it also says, ''we, the people,'' so I'd like her to be more specific for the people as to what the origin was for their being able to do that and whether Congress, they'd try to do with the disclosure act last fall, but that failed, but whether Congress can change and put that back where it belongs.

  • 11:55:15

    REHMAll right.

  • 11:55:17

    IFILLWell, I think Bruce Fein has something on this also, but let me just say first of all that the first idea about, you know, corporations being a person actually came from a statement made by a justice during an oral argument in a case in 1886 in which Justice Waite said, and I think the case is Santa Clara County vs. Southern Pacific Railroad, you know, we don't want to hear anything about whether or not corporations are persons.

  • 11:55:35

    IFILLEveryone up here believes they are. And it's kind of just kind of flowed from that statement that the justice made at oral argument. What's of course ironic and interesting is that in the citizen's united oral argument, the newly appointed Justice Sotomayor said, ''well, maybe we ought to, you know, re-look at this question. Maybe we've gone too far at oral argument.'' Of course, in the end, nothing was made of it, but that's the beginning of it and then I think Bruce Fein has more on this.

  • 11:55:57

    FEINWell, the problem arose because of the misreading of the privileges and immunities clause, which only gives protection to citizens, not persons. Privilege and immunity clause is a narrower universe of protected people and a corporation is not a citizen. Doesn’t get to vote in elections and things of that sort, and so when the court, improperly in my judgment, wiped out the privileges-immunities clause, it then used the larger universe of persons under the equal protection and due process clause to now incorporate the rights that should have come under the privileges-immunities and that's how corporations came in on that score.

  • 11:56:31

    FEIN'Cause you could see the oddity, if you had a corporation, could the state just take its property and confiscate it like Khodorkovsky's gets confiscated without just compensation. They're not a person. That kind of thing caused them great difficulty.

  • 11:56:42

    REHMBruce Fein, former associate deputy attorney general. Sherrilyn Ifill, professor at the University of Maryland School of Law. She writes for the root.com. Michael Meyerson, professor of law at the University of Baltimore. Want to thank you all so much for participating in our "Constitution Today" series.

  • 11:57:10

    IFILLThank you, Diane.

  • 11:57:11

    FEINThanks, Diane.

  • 11:57:11

    MEYERSONThank you very much.

  • 11:57:11

    REHMThank you. Thanks for listening, all. I'm Diane Rehm.

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