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. |
You're so full of it. Try Crosskey's Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1, 2-119 (1954), for starters. Or Michael Kent Curtis if you prefer something more recent.
Precedents such as this are not actual pieces of law. If they were, then we can now say that what happened in 2000 is now perfectly valid, because it's a "precedent". Absolutely nothing in the Constitution gives Congress the power to be involved in choosing electors (except by setting the times of their choosing and their voting), or to vote in their stead (except when the electors have no majority).
FLorida did have a procedure, but it clearly failed.
Florida had a procedure, and Al Gore didn't like the result. There's no "failure" beyond that point. But if what you're saying is true, that according to the procedure laid out by the Florida legislature (which you've apparently studied in detail) no electors could be decided on, then no electors had the power to cast votes, and any votes that were sent to Congress from that state had to be completely disregarded. There's no further option beyond that.
A_G, I have the utmost respect for your knowledge on Constitutional matters but my book says :"The Federalist consist of 85 essays that originally appeared in several New York newspapers between the autumn of 1787 and the spring of 1788".
It sez several news papers so if that is wrong, you need to give me a reference or two.
Oh quit with the weasel words. Berger and Curtis have been going back and forth on this for years. It's a long-standing argument. Pretending that there's only one side is dishonest.
BTW, are you still pretending that the intent of the 14th's authors is irrelevant?
However the Constitution was ratified by the individual States as a limiting document on the Federal Government - the exact opposite of what Madison wanted.
Had the document been presented to the individual States as a blueprint for what Madison advocated it never would have been ratified.
Just look at the concessions made regarding the insertion of the Bill of Rights prior to ratification.
Do you approve of what our benevolent government has become? Are you truly a fan of Madison and a powerful central government?
It sez several news papers so if that is wrong, you need to give me a reference or two.
Sorry, you are absolutely right, My apologies for my own mis-impressions and thank you for the correction. Keeps me on my toes and humble. Kick my-self in the rear a couple of times again, to make sure I check everything and allow no assumptions.
Just goes to show that everyone has preconceived ideas that foster laziness and get in the way of solid scholarship, I should have looked closer at their origins rather than just reading the essays. I was under the impression from somewhere, that one of the papers that participated in the series of essays was called the "Federalist" from whence the name was derived. Unfortunately, relying on that faulty impression, led me astray.
Knowing that the Constitution is by no means a "Federal" institution by operation today or even back then, I never bothered to really read about who actually published the original essays. There are really very few areas in which the National government acts in a FEDERAL mode, The national govenment does not operate by dictating to states by authority of law (i.e. a FEDERAL government) so much as it hooks them with tax dollars and threatens to take away grants to states when they don't to the line. Its authorities are much more oriented to the individual than a classical "Federal" government would be as was clearly pointed out by Madison and can be seen in actual statutes on the books which act on individuals & "persons" as opposed to State governments.
Here is an official statement of the origins of the Federalist Papers.
The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time.
The Federalist Papers were written and published to urge New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. In lobbying for adoption of the Constitution over the existing Articles of Confederation, the essays explain particular provisions of the Constitution in detail. For this reason, and because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution.
The Federalist Papers were published primarily in two New York state newspapers: The New York Packet and The Independent Journal. They were reprinted in other newspapers in New York state and in several cities in other states. A bound edition, with revisions and corrections by Hamilton, was published in 1788 by printers J. and A. McLean. An edition published by printer Jacob Gideon in 1818, with revisions and corrections by Madison, was the first to identify each essay by its author's name. Because of its publishing history, the assignment of authorship, numbering, and exact wording may vary with different editions of The Federalist.
You are indeed correct, even more so as neither of the original New York papers in which the Essays appeared had a name even remotely related to "Federalist".
Do you approve of what our benevolent government has become? Are you truly a fan of Madison and a powerful central government?
I just look for how the Constitution was represented and sold to the public at the time of its ratification by its proponents, and characterized by its detractors.
That does not make me a fan of powerful centeralized government, It makes me merely an observer of the fact that we have a government designed from the beginning to act upon the individual as opposed to acting upon the States to achieve its ends. That meets the definition of "National" government. Acting upon State governments to effect ends with States acting soley upon the individual is the operation of a "Federal" government.
The Constitution was ratified with the expectation that it would be a limited government directly impacting on the individual concurrent with state authority, more than it would be acting through e State governments, and that is how it has predominately acted up to this day. Where impact on States is observed he central govenment's usurptions into local government comes more from fiscal coecions rather than exercise of law. (e.g. threatening states with witholding of tax moneys if they don't toe a particular line.) That is a National government using the backdoor to effect "Federal" goals.
I do not approve of the Federal usurptions, and the limited National form is necessary for survival of the union, (as clearly demonstrated in the failures of the Articles of Confederation) but must be held limited to those authorities clearly enumerated in the Constitution.
My overriding concern is that one cannot expect to correct faults or put a monster under control unless you truly understand what you are actually dealing with. How do you correct a problem in government without even knowing the current state of that government and without understand of the ramifications of the constitutional law one is actually dealing with.
There are two many running around upholding what amounts to principles more suited to the Articles of Confederation as though they were the Constitution. They are not the same nor were the intended to be by the Drafters of the Constitution. To not recognize the difference or to attempt to treat the Constititution as though it were the Articles is just a sure way to failure to achieve any change to the law or conditions we deal with today.
The road to more personal liberty and smaller centeral government demands Constitutional amendment, not merely returning to some principle that fails to have any realization in the Constitution as it exists and has existed since its inception.
There is a fundament error in how we view the Constitution, and what it authorities and real limits are. As a concequence we do the wrong things trying to get out of the trap wondering why we only find the Constitutional noose tightening around our necks as we struggle.
Wake up folks, the problems you rail against are not with our Representatives (they are us), they are endemic the the very form and fabric of a Republic with democratically elected representatives.
The disease of the democracy, with modern communications, make the entire nation a small locality with all the problems of faction and demogoguery forseen by the founders when they attempted to distance us from pure democracy through the artifice creating a Republican form of government. The problem was exacerbated when the Senate became a directely elected body of the people and sounded the death knell to any semblance of states operating independantly from a central government providing some protection to the people of the states from National predations.
And it doesn't matter where one intends to return as a permanent home, that is what's known as one's domicile. Domicile and residence have legal significance and consequences that are totally separate from one's citizenship.
Citizenship is a permanent condition of allegiance that once acquired cannot, with rare exception for a naturalized person, be removed by government. One illustration would be the entitlement of constitutional protections to citizens taking up arms against the United States in a foreign land, eg; that fellow Lindh. Thus, while such persons may suffer the consequences of their criminal, even treasonist, conduct, they may not be deprived of their rights as a citizen.
Those same constitutional privileges, immunities and protections are incumbent upon aliens, even the illegal type, so long as their apprehension for criminal conduct is effected within any geographic place subject to the jurisdiction of the United States. An illustration of that would be the frequent prosecution of illegal aliens charged with violent crimes vis-a-vis the equally chosen option of the government to deport such aliens for crimes that do not include violence or great community interest. Those prosecuted have the full panoply of constitutional protections because of the jeopardy of deprivation of life or liberty. The government's choice of deportation does not because the same jeopardy is absent.
The contemporary issue of aliens apprehended while engaged in hostile acts against the U.S. in conjunction with a program of terror or act of war, may--or may not--permit the invocation of constitutional protections. Those tough legal issues surrounding those persons described as "unlawful combatants" have been the subject of much discussion, after dinner speaking presentations (that I have done some of) and scholarly writings. The questions of citizenship, residence or domicile do not even approach this latter situation.
I think the relevance of this discussion to the Fourteenth Amendment properly stops at the plain words of the Constitution itself. The reference to "persons" is a clear mandate that the provisions of the amendment are not limited to, nor is it concerned with, limiting the protections, rights, immunities thereunder to those individuals who are also citizens. The rationale' is focused on the potential end result of the myriad factual situations to which it would apply. Example, the child born of an illegal immigrant mother is, by virtue of its birth, a citizen of the United States--and for whatever value it may have, also a citizen of the state of birth. Another example, any person apprehended for the commission of a crime, irrespective of personal legal status, is entitled to the equal protection of whatever laws would be applicable to a similarly apprehended person who was a citizen.
The often raised assertion of the amendment's lack of ratification or non-lawful existence can be an interesting legal conversation for third year law students over some beers at the local tavern across from the campus. But as a serious constitutional consideration it is a meaningless exercise that is devoid of even a scintilla of relevance or merit.
Those who relish the opportunity to postulate the existence of all manner of conspiratorial and sinister theories of lawyers, judges and the courts delight in citations to fervently written yet notoriously unscholarly and unsupportable dissertations that zealously wish that it were so.
It's the invocation of a device of advocacy often engaged by lawyers when they have nothing to support their argument but very eagerly wished-for acceptance of their assertions. The device is described as: " When you have the law on your side, pound on the law; when you have the facts on your side, pound on the facts; when you have neither the law nor the facts on your side, pound on the lecturn." What is offered as authority for the absurdity of the assertion of the Fourteenth Amendment's fraudulent place in our jurisprudnce is a patent illustration of 'pounding on the table.
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.