Skip to comments.GOP Leader McConnell: Fourteenth Amendment is in Need of Review
Posted on 08/03/2010 8:17:59 AM PDT by lbryce
Senate Minority Leader Mitch McConnell (R-Ky.) told The Hill on Monday that Congress ought to take a look at changing the 14th Amendment, which gives the children of illegal immigrants a right to U.S. citizenship.
McConnells statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.).
In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the countrys immigration problem.
McConnell stopped short of echoing Grahams call for repeal of the amendment.
I think we ought to take a look at it hold hearings, listen to the experts on it, McConnell said. I havent made a final decision about it, but thats something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I dont think anybody thinks thats something theyre comfortable with.
During an interview on CBSs Face the Nation on Sunday, Kyl said, There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?
Kyl added that he suggested to Graham that we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.
It is unclear when such hearings would occur. Democrats, who control the Senate, set the chambers hearing schedule.
(Excerpt) Read more at thehill.com ...
Of course, it is without exception being reported as “wanting to change the 14th Amendment”, no doubt to instill that very thought — “amend the Constitution!? he’s crazy!” — in the audience.
I seriously doubt the framers of the 14th intended for it to be misread the way it is today, and to grant citizenship to children of aliens, with no ties to this nation.
All it takes is the Congress to draft a Constitutional amendment and offer it on the floor to bring about a Convention. Unfortunately, these are not the right times to open up the Constitution to liberal/progressive changes. The asshats in the early 20th century did enough damage!
I’m already hearing a lot of spin that in addition to slaves, the Congressional debate at the time also concerned Irish and Chinese immigrants. NOW they want “original intent”, huh!
“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.”
What part of “and subject to the jurisdiction thereof” do these people fail to understand. Applying the 14th to freed slaves was appropriate. Twisting the ruling to create anchor babies was not.
Ya think! Does it really require hearings by "constitutional experts" to come to this conclusion? It's flat-assed wrong...period...end of hearings...end of discussion.
Mark Levin says the 14th in no way says any baby born here is a citizen.
Mr. Levin should be nominated instead of Kagan-!!!
There is no need to change anything. There is a need to have hearings to clarify that nobody born to illegals is automatically a citizen. Especially when it involves Kenyans....
There is NO NEED to amend the Constitution. Congress only has to pass appropriate legislation to make the problem of anchor babies disappear. All it takes is reading the Constitution, a task that some Congressmen and many reporters are unable to do.
John / Billybob
How about just repeal it...Since there are not a lot of elected officals anywhere that understand the true intent of the Amendment...
I’m ok with just tossing it up on the trash heap of abuses this government continues to throw onto the people...
Just my opinion...
It’s a con job on Republicans and Americans in general, a way to push another amnesty scam that will make the anchor baby issue moot. The GOP has bought the ridiculous premise that continuing to play the amnesty game will somehow cause Hispanics to abandon the Democratic Party, and become the new backbone of the Republican Party. Yes, it is idiotic, contrary to all evidence, but that is their spiel. Don’t buy this con job about anchor babies unless it comes with a determination to stop with the amnesty programs, seal the borders, and crack down on the employers of illegals. Graham is nothing but an aisle crossing slut.
I think the article (deliberately?) misquotes McConnell. Note that the direct quote does not include the money-word “changing”.
What’s really controversial? The concept that someone can come here illegally, jump across the border, have a child, and that child will be a full American citizen. That doesn’t even make sense, and it’s a distortion of the 14th. Foreign diplomats are guests who come here legally, but their children don’t become citizens by virtue of being born here. What makes people think aliens who are not “subject to the jurisdiction” of the US, owe no allegiance to the US, and come here in direct violation of our laws have more rights than diplomats?
As for Republican politicians, I don’t trust any of them. They’ve been in the majority before, and they blew it! Incumbents in both parties need to be bloodied next election. Only the fear of being tossed out of office will reign these jokers in.
Review? It needs tested. While there seems to be the " under the jurisdiction thereof" issue, it is clear it's authors never intended what it has become.
AZ should pass a law stating it will no longer issue birth certificates to offspring of illegals. They should issue instead records of live birth. Hell, if that's good enough for Obama, it should be good enough for the anchor babies.
What's Obama gonna do about it? Challenge AZ on preemption or supremacy? I thought immigration issues were the sole responsibility of the feds.
All McConnell has to do is clone Bob Stump's text from 2001 and go with that.
” McConnell is fuzzy on the Constitution “
McConnell is fuzzy, PERIOD. Usually, he is asleep.
New blood needed.
I find it interesting that these fools try and apply the 14th to illegals. If they want it to apply to immigrants, it should only apply to legal immigrants.
Leave the Constitution alone. Can you imagine what the liberals would like to do to the second?
The Constitution is fine the way it is, the problem is with activist judges interpreting it.
I would like to see the 17th repealed but not at the cost of liberals messing with all of them.
Russell Pearce has the right idea as usual. Although he has all the subtlety of a bull in a china shop, Pearce’s direct approach is correct: pass it and let the 5-4 SCOTUS decide. On SB1070, he said he “wrote it to win 5-4 in the Supreme Court”. And he is about to push anti-birthright citizenship legislation as well. The SCOTUS has NEVER definitively ruled on this, only on the offspring of LEGAL Chinese immigrants at the turn of the 20th Century. This is the way to go. There is lots of commentary and notes by the drafters of this amendment to show that the intent was to do the opposite of what has been interpreted.
Typical RINO ruse. The 14th says no such thing.
They just need to revisit the Federal Government’s W[r]ong interpretation of the 14th Amendment in that regard.
The man who co wrote the 14th amendment was clear that it did not apply to the children of aliens to the United States. His writings were not taken into consideration when the SCOTUS ruled on the case of a Chinese man who’s parents were deported in the late 19th century.
When you look back at the track record of the GoP leadership the last few years, one can only wonder what could have been..
-anwr could be a producing oil field(but Norm Coleman said No, he was the 60th cloture vote to enact energy legislation that could have made a difference to all of us.
-nuke plants could actually be under construction.
-all the wasted money on renewable energy could have been used to actually foster growth and not stifle it and chase pie in the sky.
But, we would have needed some leaders with ‘cojones’, huh?
I used to think Mitch had ‘it’... and got ‘it’.
Any gains in either the House and Senate should also result in new blood and new leadership and not a return to mugwumpian politics and a repeat squandering of power.
You've got some Constitution confusion. This is what Article V says...
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
The Congress doesn't call a Convention, the State Legislatures do - specifically when 2/3rds of the states call for a Convention.
Amending the Constitution is - by design - extremely difficult to do. That is why after the adoption of the Constitution during the first Constitutional Convention, it has only been amended 17 times.
However realistically when you have liberal activists like Kagan on the USSC who flatly state that precedent overrules original intent then a constitutional amendment may be the only hope.
Oh, you made my day. What a wonderful idea! Thanks. It’s just nice to think about. Like knowing the Marines are just down the corner.
Exactly and it's in the congressional record for anyone in Congress now who cares to look.
Hey we're all for doing the right thing here, but ya gotta understand, our hands are tied, man.
In reading statutes or contracts, "and" is conjunctive. Its clear language means that you must both be born or naturalize, and must be subject to its jurisdiction.
It is quite plain and there is no wiggle room.
Assuming of course you can get 5 Supreme Court Justices to agree with you. With Kennedy on the court, that may not be likely. I can't think of a single immigration/citizenship case in the last 20 years where Kennedy has joined (in entirety) with the plainly conservative side of the Court.
Roberts & Alito (especially Alito) were both challenged on this issue during confirmation hearings. Schummer really pressed Alito, but Alito admirably parried Schummer's attack. My sense from the hearing was that Alito was open to revisiting the 14th, and narrowing or clarifying the decision in Ark.
Roberts has been entirely silent on the subject. I can't find any public comments or legal writings from Roberts on the meaning of "subject to the jurisdiction thereof". As I recall, he was pressed extensively on Plyler v. Doe, but he stuck to his statement that it was a subject he hadn't even thought about since law school. Since he didn't use the "settled law" phrase, I think he's likely to be open to limiting the application of the 14th.
Thomas and Scalia would seem likely to limit "jurisdiction" in this case. Kennedy, as usual, is the problem.
Chief Justice Fuller's dissent on that case was a legal thing of beauty.
It was also prescient. He knew exactly what the practical effect of the majority opinion would have - that everyone would be eligible for citizenship if they weren't born to foreign armies or foreign diplomats. In criticizing the majority opinion, he says this...
"Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not."
Fuller sees clearly the problems with the Ark opinion moving forward.
If Congress drafts legislation to amend the Constitution, that legislation will be voted on in the legislature and then sent to the states for ratification. I wasn’t completely off, just missing a few steps. The states can call a Constitutional Convention on their own, but if Congress drafts legislation intended to amend the Constitution, the States have to call a Convention.
Correct me if I’m wrong on any of these points, but I believe this is how I understood it in my Constitutional history class.
Good luck amending the 14th....Not with the Dems and Liberal RINO GOP voting to change it.
Do you think a Liberal RINO like Mitch McConnell will change the 14th Amen.?
All that needs to be done to stop anchor babies is to give the mother of the illegal kid a choice: A. Kid stays and you and your family return to Mexico. or B. The kid goes with you and the family back to Mexico.
The kid has birthright....not the parents. Deport the parents and the rest of the family. You will stop the anchor baby nonsense
If 2/3rds of Congress (in both houses - which is 67 in the Senate, and 290ish in the House) propose a new Amendment, that proposed Amendment can be ratified in one of two ways. First, 3/4ths of the respective State Legislatures may vote for adoption - how that process works, is dependent on the rules in each respective State Legislature. I think most are simple majority, but I'm not positive.
Second, a ratifying convention may be called. This has only been done once, for the 21st Amendment which repealed the 18th Amendment (prohibition). The rest of the Amendments were passed using 3/4ths of the State Legislatures.
"I wasnt completely off, just missing a few steps. The states can call a Constitutional Convention on their own, but if Congress drafts legislation intended to amend the Constitution, the States have to call a Convention."
Not "have to" - may call a ratification convention. Or, they can simply vote to ratify it as individual legislatures, if they can get 3/4ths of themselves to vote as such.
Lastly, the other way to do this is for the states - 3/4ths of the states - to call for a Constitutional Convention. This, of course, has never been done except for the first Constitutional Convention.
Excellent! Thank you for the clarification, ODH. It’s been a while.
No it hasn't. Wong Kim Ark dealt with the children of legal aliens.
The subject of illegal aliens has never come up.
Intentionally. Because their supporters realize what would happen.
Rather transparent isnt it. This is the big wiener that the Rinos will push for along with increased Border Patrol Agents and mandatory employment verification. In the coming compromise for comprehensive immigration reform amnesty will pass with provisions for more BP agents but employer verification and birth right citizenship will be dropped.
Finally! For the love of God and all that is Holy, put the requirements of citizenship BACK to the states where it belongs!
That is exactly how it works now. The parent does not get to stay in the US just because they have a US citizen kid. We deport countless illegal parents daily who take their US citizen kids with them.
The problem is in 21 years the kid has a right to petition to have his or her parents, sisters or brothers and any children they may have had out of the country to receive immediate relative status immigrant visas. Immediate relative visas have no annual cap and are a first priority for processing. That is why they call them anchor babies. Its chain immigration with no end and our immigration services first priority is family reunification.
I was more impressed with his analogy to "birthright citizenship" as equivalent to British press gangs, in that it is a way that the State places a claim of obligation on the part of a person born here but otherwise having no natural loyalty. For example, a child born during an an overflight of American airspace could theoretically be taxed or drafted.
It was a very deep analysis, its like seldom seen in American jurisprudence.
That's not right either. The majority opinion in Ark made no distinction between legal and illegal immigrants - which was a concept that had already been established with the enactment of the Page Act of 1875, some 14 years before Ark was heard and decided.
The Ark opinion, both the majority and dissenting opinion, could have drawn a distinction between the two classifications of immigrants, but didn't. The only exceptions the major laid out was (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory.
The central legal argument Gray asserts stipulates these facts...
"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
While that's not inclusive of illegals, it's certainly not exclusionary either. A future court is either going to narrow or affirm the understanding in Ark, but whatever happens, it will be their call, not Congress.
True, the case was about aliens who had entered the country legally. The USSC has never directly ruled on illegal immigrants per se although in Elk v. Wilkins the plaintiff John Elk was born in the US on a reservation but as a member of an Indian nation was not considered to be an automatic citizen at the time. So that may be considered an illegal immigrant case.
That's why I don't understand how anyone in Congress today cannot get the fact that their own legislating in the Indian Citizenship Act, which came years after Ark affirmed their authority to determine whether whole classes of illegal aliens would qualify to be an automatic citizen or not. Or it could be most likely they do and prefer to keep it political.
the 14th Amendment, which gives the children of illegal immigrants a right to U.S. citizenship.thanks lbryce.
Yes, the states propose the convention, but if you read the clause closely it says that Congress calls the convention. Therefore, what do you do if Congress refuses to call the convention if the states ask for it? What if the Congress delays a convention indefinitely or unreasonably to manipulate election outcomes in the state legislatures?
On another note, we really ought to amend Article V to make the amending process clearer. There are a lot of very gray areas in the Article V amendment process which ought to be be amended to clarify things like how long each state has to complete the ratification of an amendment, whether a state can withdraw its ratification once they've given it as long as the amendment isn't ratified yet, whether a state can change its vote from no to yes. What happens when the US uses the military to compel states to ratify (like in the Civil War which also rigged the state legislatures with the rump legislatures)? Who gets to determine when the ratification has been properly done? What if states are added in the middle of a ratification process, do you use 3/4 of states at the time it was proposed or 3/4 the number of states at the end of the process? etc. All of these are real questions that have come up at some point of US history. The amendment sounds so straight forward when you read Article V, but in reality there are some serious problems. It could use a little clarification.