Posted on 09/19/2003 10:05:29 AM PDT by Sir Gawain
|
Did the Fourteenth Amendment make the American People Citizens of the Federal Government?
|
|
By Robert Greenslade
|
| In recent years, it has been asserted that the Fourteenth Amendment diluted or abrogated State citizenship by making the American people citizens of the federal government. Section 1 of the Amendment states: 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. When the Constitution was adopted, it did not contain a formal definition of citizenship. This omission was not a defect as some have asserted. The system of government established by the Constitution did not warrant a definition of the term. Contrary to the misrepresentations emanating from friends of big government, the Constitution did not create a national system of government or consolidate the States or their people into a single nation. The Constitution was simply a continuation of the federal system of government established by the Articles of Confederation. Under this system, the federal government would act as the agent of the States and its powers would relate to mutual relations between the States and external or foreign affairs. All powers involving to the life, liberty, property, and happiness of the American people, would remain with the States. Since the federal government was functioning as the agent of the States and representing their collective interests, that government did not have any individual citizens of its own. The only class of citizen found within the borders of the United States when the Constitution was adopted, excluding foreigners, were Citizens of the individual States. Even though the Constitution does not contain a formal definition of citizenship, it does make reference to three classes of citizen [excluding the reference to foreign citizens]. They are: “Citizens of each State,” “Citizens in the several States,” and “Citizens of the United States.” All three refer to State citizenship because the Constitution did not make the people of the several States citizens of a single government or nation. Under the Constitution, the term “Citizen of each State” is synonymous with the term Citizen of one of the States united under the constitutional compact between the States. The term “Citizens in the several States” simply refers to State citizens in the different States. They were also known as “Citizens of the United States” or Citizens of the States united under the constitutional compact because their State was one of the United States and a Citizen of one State could change their citizenship and become a Citizen of any of the other United States [See Article IV, Section 1, Clause1]. These are the only classes of citizenship recognized under the Constitution, as contemplated by the Founders. Citizenship could be acquired one of two ways. First, by birth, or second, by being naturalized pursuant to the power of Congress under Article 1, Section 8, Clause 4 of the Constitution. After the requisite number of States ratified the Constitution, the States’ government began acquiring territories west of the existing boundaries of the United States. Since these areas were outside the jurisdiction of the individual States, the government of the United States had exclusive jurisdiction over all persons in these territories. Any person born in these areas to parents who were not Citizens of an individual State could not claim State citizenship by birth or naturalization. Since these individuals were born under the exclusive jurisdiction of the government of the United States, that government claimed the authority to make them statutory citizens of the United States [citizens by statute]. However, that government could not, by statute or decree, make these individuals Citizens of a State. This same rule applied in the District of Columbia. Pursuant to Article 1, Section 8, Clause 17, the District is under the exclusive authority of the government of the United States because it is not a State. Persons born in the District who could not claim State citizenship were classified as citizens of the United States because they were under the exclusive legislative jurisdiction of the government of the United States. The Fourteenth Amendment was not proposed because the States’ agent woke-up one morning and decided to change the nature of the Constitution and make the American people citizens of the federal government. The classes of citizenship referenced above only applied to free white persons. The Negro, according to a 1857 decision by the United States Supreme Court, “was ineligible to attain United States citizenship, either from a State or by virtue of birth in the United States even as a free man…” Following the Civil War, the Thirteenth Amendment constitutionally freed the African slaves from bondage. However, Congress was still faced with a problem. Even though the Southern States lost the War, their State Constitutions still did not recognize blacks as persons entitled to citizenship. Not only did Congress lack the constitutional authority to alter these State Constitutions, but it also lacked the authority to confer state citizenship on these individuals. Absent citizenship, the Southern States viewed the newly freed slaves residing in their territory as aliens and began enacting laws that severely restricted the personal freedoms of persons who were not citizens of their State. These laws were commonly known as “Black Codes” because the target of these repressive laws were the newly freed slaves. Since the Southern States had not yet been restored to their pre-war status as States of the Union, they were treated as occupied territories that fell under the exclusive jurisdiction of the government of the United States just like the territories. This enabled Congress to enact legislation that would block enforcement of the “Black Codes.” One of these pieces of legislation was the Civil Rights Act of 1866. The Act stated in part: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States… From a constitutional standpoint, there was a problem with this part of the Act. Congress lacked the general statutory authority to declare persons to be Citizens of the United States. The only way to remedy this was through a constitutional amendment. Fearing that the United States Supreme Court might declare the Civil Rights Act unconstitutional, on various grounds, Congress proposed the 14th Amendment. As a result of the Thirteenth and Fourteenth Amendments, the newly freed slaves went from bondage to Citizens of the United States [Citizens of the States united in the compact or Union between the States] and Citizens of the State [Citizens of one of the United States] where they were residing at the time the Amendment went into effect. United States citizenship simply meant the newly freed slaves could exercise citizenship in any one of the United States. By giving the newly freed slaves the ability to acquire and exercise citizenship in any one of the United States, none of the United States could have prevented the newly freed slaves from changing their State citizenship and acquiring new citizenship in their State. This brings us to the threshold question. Did the Fourteenth Amendment change the nature of citizenship and make the American people citizens of the federal government? The so-called citizenship clause of the Amendment states: 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. Nowhere in this provision does it grant or confer citizenship on any class of person or subject anyone to the jurisdiction of the federal government. It only defined citizenship, as it had been commonly understood since the adoption of the Constitution, and spells out the method by which it can be obtained. The assertion that this provision made the American people citizens of the federal government can be reduced, for purposes of this article, to the phrase? “United States, and subject to the jurisdiction thereof.” Unless these words refer to the federal government, this assertion fails on its face. The Constitution, as stated previously, is a compact or contract between the several States. Under contract law, a word or phrase has the same meaning throughout the contract, or any amendment of the contract, unless the word or phrase is specifically re-defined for another part of the contract. The phrase “United States,” as used in the Constitution, refers to the individual States in their united or collective capacity. It does not refer to a single government or nation because the Constitution only established a “partial” Union between the several States. In other words, the States are only partially united under the Constitution. Thomas Jefferson expressed this principle in 1800 when he wrote: “[t]he true theory of our Constitution is surely the wisest and best, that the states are independent as to everything within themselves, and united as to everything respecting foreign affairs.” One does not have to look any further than the Thirteenth Amendment to prove that the words “United States” refer to the States. Section 1 of the Amendment states: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. [Emphasis added] If the words “United States” referred to the federal government, then the provision could not have used the term “their” to describe the jurisdictional provision of the Amendment. It would have stated: “subject to its jurisdiction.” As stated above, a word or phrase has to have the same meaning throughout the contract unless it is specifically re-defined for another part of the contract. If the words “United States” refer to the States in the Thirteenth Amendment and the federal government in the Fourteenth Amendment, then the same words in back to back Amendments have two completely different meanings. This would be an absurdity. If the phrase “United States,” as used in the Fourteenth Amendment, refers to the federal government, then the two phrases would be interchangeable and have the same meaning throughout the Amendment. By replacing the words “United States” with “federal government,” the Amendment reads as follows: All persons born or naturalized in the federal government, and subject to the jurisdiction thereof, are citizens of the federal government and of the State wherein they reside. Such a reading would be lunacy because it is impossible for persons to be “born or naturalized in the federal government.” The phrase “United States,” as used in the Fourteenth Amendment, has to refer to the States. Senator Howard of Michigan, who authored the citizenship provision of the Fourteenth Amendment, made this fact crystal clear when he stated that the jurisdictional provision enumerated in the Amendment refers to the States, not the federal government. This amendment [the Citizenship Clause] which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is…a citizen of the United States. [Emphasis added] As stated by Senator Howard, this provision changed nothing. If it was merely declaratory of “the law of the land already,” then the Fourteenth Amendment could not have made the people of the several States citizens of the federal government because they were not citizens of that government before the adoption of the Amendment. The underlying reason the American people cannot be citizens of the federal government was expressed by John C. Calhoun in his writings on the Constitution: It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation. Since the federal government is, by definition and intent, the common government of the several States, not the general government of the American people, the Fourteenth Amendment could not have made them citizens of the States’ government. Note: it has been asserted that the Amendment was never properly ratified. For an interesting article on this subject, click here..
Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution. |
But it is to be remembered that it is not only Americans of African heritage who are the victims of this process, just as it was not only Americans of African heritage who were victims of the slave labor system.
Still, remember that even Plessy Ferguson had a positive element drawn from the recalcitrance of those not willing to accept the founding principles. While it did hereld the advent of more segregation, it also opened the door to tossing out the corrupt politicians and manipulators who had for so long made the implementation of effective railroad networks in the south an impossibility.
While at first glance many would consider this irrelevant, it's not, because it provided the rock to stand upon for the court from which it levered the moon, so to speak. We saw the same process at work in Roe, and it won't be until someone figures out how to reverse the matter that we put will be able to put the courts in their proper place and take those few white tower elitists out of the position they have of dictating social change as they see fit, instead of as the people see fit.
The nation needs to have it's own house in order so that it can clean house in the courts. There is no law they can pass to deny you the right to be a Christian, or to behave like one, but it's hard to see that very many understand this today.
Even greater LOL is reserved for the anti-Constitutionalists who named their Papers the Anit-Federalist while supporting the concept of States being taxed through the artifice of "Quotas" by a Federal</b Government under the Articles of Confederation.
This was in response to Justice Kennedy's analysis that the Congress did not have the right to change the meaning of a portion of the Constitution. Which is to say, that the pot would be calling the kettle black. It's clearly far easier for the judiciary to change the meaning of the Constitution on a whim than it is for the Congress + the Senate + the President.
And another good one is:"by anyone who regards the Constitution as superior to ''constitutional law."
Undoubtedly, getting rid of the 14th by any means possible is Constitutionally advantageous. But...I'm new to the arguments against Incorporation, and while I can see where they arise, and the abuse of things like the Commerce Clause to foment Incorporation, I wonder about the history of such rights in the States that the BOR asserts that Congress cannot abridge. Such as, Second Amendment rights. My assumption is that State consitutions would have similar guarantees, and it would be incumbent on the individual to decide for themselves whether he was comfortable in such a state, and if not, to move to one where he is, or to agitate for change to his state's Constitution.
Any comments on that?
You know what I meant. No, the state government is not sovereign over us. However, the people who formed the state goverment are sovereign over the area within the boundaries of the state and the National government is not.
"No matter what anyone says" makes it sound like the causes of the war are more a matter of faith or will or what people need to believe, not about facts or reason or things we can rationally resolve.
People today can say that slavery was "only peripherally" involved because it's no longer a live issue. Slavery was very much alive and heatedly argued in the 1850s and 1860s. After the war, when it was no longer possible to argue for slavery, ex-confederates backpedalled and emphasised other issues.
Was slavery the only thing on everyone's mind in 1860? No, though it dwarfed other political issues. Was it the only reason men enlisted to fight? No. They signed up for other reasons, but war wouldn't have come without the controversy over slavery. We can't understand what happened without understanding and recognizing the significance of slavery. More here.
You and I have had this argument before. The Constitution created and empowered a limited Federal government. The BOR provided further express limitations on that Federal government. When amendments in the BORs says "Congress shall make no law" that becomes obvious.
If not, then the Constitution formed a national government and the states are simply subdivisions of the whole. But, you and I both know that is not what was intended.
But the matter was not settled in Congress, was it? More importantly, the election process in Florida proved itself to be insufficient except by fudging the end result. There is no way to ever know who won by a count, because the state could not provide an accurate account to save it's life. None exists, and none ever will. That's a sham and a disgrace.
The election results in Florida should have been discarded, and the matter settled on that basis. If FLoridians feel disenfranchised by that, it only represents the same state they are in now, and they only have themselves and their government to blame.
The embarrassment with SCOTUS is that it did not recognize the key issue in the case, which was that the government of Florida had a responsibility that it abrogated, and that it should have been held responsible for. NO one cared enough, and that's merely symptomatic of the ills of the country these days. However, it's also not exactly new, especially in Florida.
It's the responsibility of Congress to recognize this fact, and then to make it's decision on how the election was to be settled. Of course, this would have allowed the House to properly install Bush under the rule of the Cosntitution, but Congress didn't have the nerve to do it's job, or to simply call the election in Florida for what it was, an failure on all counts.
From that opinion:
Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)Note that Justice Miller used the words, "was intended to" as if he were relating a fact of history and not merely stating an opinion. Given that he was a contemporary of those who authored the amendment, it is clear that the original intent of the language was to prevent what is happening now: women jumping the border and bearing an American citizen.
Opinions
MILLER, J., Opinion of the Court
"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."
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
And another good one is:"by anyone who regards the Constitution as superior to ''constitutional law."
One of the most important doctrines in Western law is that of stare decisis, a Latin term of art which means "to stand by decided cases; to uphold precedents; to maintain former adjudications".[1] In modern jurisprudence, however, it has come to take on a life of its own, with all precedents being presumed to be well-founded unbiased legal decisions, rather than political decisions, and presumed to have both the authority of the black-letter law on which they are based, plus that of the precedents on which they are based, so that later precedents are presumed to be more authoritative than earlier ones.
The doctrine also tends to give great weight to the opinion in the case, even to the point of treating the opinion as though it was law, even though only the order and findings have the actual force of law, and only in that case, and an explanation of how the decision was reached is only dictum, or commentary. This means that a poorly-worded opinion can define a set of legal positions that exceed the bounds of the underlying black letter law, and become the basis for future precedents, as though it were black letter law itself. The problem is exacerbated by the failure of judges to clearly delineate the boundaries between edict and dictum. How stare decisis Subverts the Law
Such as, Second Amendment rights. My assumption is that State consitutions would have similar guarantees, and it would be incumbent on the individual to decide for themselves whether he was comfortable in such a state, and if not, to move to one where he is, or to agitate for change to his state's Constitution.
I agree.
Re the 14th and it's legality, any contract signed under duress (military rule) is unenforcable, null and void. The states that refused to ratify WERE states, as evidenced by the submission of the 14th for their approval. Nowhere in the Constitution is the federal government delegated the power to invade a state simply because it disagreed with that states decision.
The nation needs to have it's own house in order so that it can clean house in the courts.
Bottom line!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.