Questions on Prop 8, Birthright Citizenship Ignite Debate on 14th Amendment

Thursday, August 05, 2010

This week, we discuss two big stories, each of which considers the original intent of the 14th Amendment. Known as the "Reconstruction Amendment," as it passed in the aftermath of the Civil War, this clause of the Constitution guarantees U.S. citizenship for anyone born in the United States. It prohibits state governments from depriving anyone of "life, liberty, or property, without due process of law," and mandates "equal protection of the laws" for all citizens.

On Wednesday, a federal judge in California ruled Proposition 8, the voter-backed ballot measure to prohibit same-sex marriage, unconstitutional based on "due process" and "equal protection" grounds: both clauses in the 14th Amendment.

Meanwhile, on Capitol Hill, several Republican senators are proposing to repeal or change the Amendment. They say we should no longer automatically give citizenship to American-born children of illegal immigrants.

Sens. Jon Kyl of Arizona, Lindsey Graham of South Carolina and Mitch McConnell of Kentucky are all publicly questioning the amendment, suggesting there should be hearings on the matter.

We speak with Randall Kennedy, a Professor at Harvard Law School who teaches race relations and the law, about the circumstances around the original passage of the Fourteenth Amendment.


Randall Kennedy

Produced by:

Posey Gruener, Arwa Gunja and Elizabeth Ross

Comments [24]

JackieS from Riverdale, NY

Re the Republicans actions vis-a-vis the 14th amendment, as well as to pending legislation and judicial confirmations: Obstruction of Justice is a federal crime. It is time to make frivolous obstruction of legislation a crime, as well.

Aug. 11 2010 11:42 AM

Regarding Judge Walker and California's "Proposition 8" -- The "sanctity" of marriage between a man and a woman, for purposes of procreation or otherwise, has long since been abandoned in the United States. In 2006, 38.5% of all live births were to unwed mothers -- 38.5%. And, in 2008, there were 2,162,000 marriages and roughly 1,081,000 divorces. What were the other arguments in favor of restricting the benefits of marriage to heterosexual couples only? I forget.

As for modifying the 14th Amendment because too many "illegal" babies are gaining US citizenship -- There are some 32 other countries besides the United States that confer citizenship based on birth within the jurisdiction of that country. Five other countries will confer citizenship based on birth if one of the parents is a legal resident of the birth country.

In terms of "securing" our borders, what exactly is it we're supposed to? Build an impenetrable wall along the entire order with Mexico? How high? What about the border with Canada? Folks can walk across that border, too. What about the thousands of miles of coastline? Are we supposed to wall them off ,too?

Aug. 11 2010 12:18 AM
Kathryn from Bi-Coastal

I have to shake my head over the research allegedly done by Judge Walker (or his aides) on the history of marriage to arrive at the "facts" he is said to have based his decision on.

All that research, and he missed the most salient fact of all: that with all the changes and variations in marriage practices throughout different times and cultures, the ONE constant, the ONE common denominator is that marriage is male-female! And for reasons that are only too, too obvious!

Every last one of us is the product of male-female union. To deny this fact that is the very foundation of our existence, in order to break down the bedrock definition of marriage so as to allow the title to a pairing that at the most fundamental level does not qualify -- this horror leaves me speechless.

Judge Walker, you do not have the constitutional right to commit this outrage against humankind.

Aug. 06 2010 10:30 AM

I keep hearing all the yap about other countries denying citizenship to children born on their soil to foreign parents and, while I haven't done the research, I tend to think it's hogwash to justify a position and, most likely, copied from an ignorant rant put out by Glen Bleck, Rash Limbass, et al. I base my statement on the following facts:

1. A child born on a ship which is sailing on international waters will be considered a citizen of the country under whose flag that ship is sailing; and

2. My cousins studied in the former USSR. She got pregnant while there and was told by the Soviet government that if her baby was born in the country, he would be a Soviet citizen and not permitted to be taken out of the country. They would have to leave him behind. She had no choice but to go home on the last quarter of her pregnancy, have the baby, leave him at home and go back to the Soviet Union to complete her education.

3. Have another cousin who married a German. They had two children, one in Germany and one here. The wife decided to go back and only the child was considered a German citizen, not the one born outside; and

4. Also have a Japanese friend who went back to Japan to deliver both of her children as she wanted them to be born in Japan so they could be Japanese citizens by birth.

Any child that has been born in the US to migrant parents is not considered a citizen of the country of their parents' origin but a citizen of whatever other country he/she was born. Even those countries like Ireland who grant automatic citizenship to their citizens heirs.

In addition to this and as if to support my thinking, here's this tidbit:

"Millions of outsiders eligible for EU passports
The main beneficiaries are citizens of Moldova, Macedonia, Serbia, Ukraine and Turkey - about 4.7 million people with living standards at a fraction of the EU average whose countries are years away from membership"

Again, I haven't done the research to see whether those claims hold water and I'm merely making my assertions on these incidents and the fact that only Right Wingers seem to be making such claims which indicative of their heard mentality and a pattern of think/do/repeat what you're told.

Aug. 05 2010 03:48 PM

a gay march took place in Jerusalem recently and from the video it appears they did not receive a warm welcome from onlookers or the police. Apparently gays can openly serve in the military but...Raw Video: Gay Pride in Central Jerusalem
Thousands of members of Israel's homosexual and lesbian communities and their supporters held a 'Gay Pride' parade through central Jerusalem

Aug. 05 2010 03:34 PM
MK Ultra from Here and now

I truly don't get it with these people. If they think that gay marriage is so wrong, all they have to do is not marry a gay person. Period!

Aug. 05 2010 03:14 PM

I don't think the 14th amendment should be repelled, but I do think it should be changed. We are the only country in the world that has this law. Everywhere else, you have to be a citizen before your children who are born in the country can be citizens. That said, I don't think we should have emigration quotas.

Aug. 05 2010 01:33 PM
Adam from Detroit

The citizens of California voted not once, but twice for this ban on same-sex marriage. For a judge to overrule this is a slap in the face to the democratic system. Why vote if a judge can simply overturn it?

Aug. 05 2010 12:49 PM
Tony from Holden, MA

Marriage is an institution created by religious organizations, the state stepped in the picture later. The fact is that a same-sex couple cannot be equal to a hetero-sexual couple since it is impossible for them to procreate. The hetero-sexual couple has that possibility. The existence of society is based on the birth of children. Marriage exist to determine the lineage of the children. The phase 'same-sex marriage' is an oxymoron. Marriage is always between two dissimilar things.

Aug. 05 2010 11:56 AM
Roger Hockett from Seattle

Professor Kennedy was informative regarding the Old English Common law basis for citizenship and the US history behind the various amendments to the Constitution. One has to wonder about how Right Wing strict constitutionalists now justify tinkering with all these old constitutional based laws. Trick of the mind I suppose.

Secondly, I watched Collin Firth in "A Single Man" the other night and while I am usually a bit uncomfortable watching gay movies this one was completely comfortable and satisfying. Probably because of the beautifully acted character who is steadfastly committed to his mate. A strong statement for legal marriage between committed couples regardless of sex.

Aug. 05 2010 11:13 AM
Austin Murrey from Oklahoma City, OK

I'm very proud to be a member of the justice system today. I believe that gay rights are the civil rights issue of my generation, and it's enormously gratifying to finally see them given the constitutional protection that is so long overdue.

There may be no mention of a right to same-sex marriage spelled out in the Constitution, but neither is there any right to heterosexual marriage mentioned, nor a right to privacy, nor many other things we take as basic rights. What it DOES say is that all cititzens must be treated equally under the law.

Aug. 05 2010 10:21 AM

Many comments read that the 14th amendment should be repealed, but the 14th defines more than birth to citizenship. The 14th should be amended to perhaps that the mother must live in the USA legally for 3 years.

Aug. 05 2010 09:59 AM
David Zapen (WLRN) from North Miami Beach, Florida

If is right, this squabble could lead to a Great Compromise (insert ELECTRIC COMPANY joke here). Liberals might give up anchor babies IF conservatives give up corporations as people with political rights instead of only economic rights, undoing the Citizens United decision and the "right-to-lie" decision that okayed the firing of reporters who didn't want to lie about Monsanto's alleged merits.

Aug. 05 2010 09:26 AM
James Rubin from NYC

What is un-democratic are these referendums. Why have a representative republic and then have all of these referendums? Why have a legislature?
It's the referendums that should be banned.

Aug. 05 2010 08:38 AM
Lauren Commons from Sharon, Massachusetts

The very notion of denying citizenship to SOME people who are born in the U.S. based on some specific circumstances of their parents life is petty and spiteful, and unbecoming of a great nation.

Aug. 04 2010 09:13 PM

I believe that was enacted for the free slaves.It has outgrown its time. First of all to become a US citizen you must learn some things about this country.If you are a anchor baby you never have to learn anything.Will probably speak a foreign language and that divides the country.
Speaking English should be required to be a citizen.

Aug. 04 2010 07:12 PM

How far back does illegal go? Does it include parents,grandparents,great grandparents etc? How do you prove you were born legally?

Aug. 04 2010 06:49 PM

Depending on who you talk to, the criteria for being a citizen by birth is different. While all people advocating a repeal of the birthright portion of the 14th amendment would deny automatic citizenship to the children of those illegally present in the US, and most would deny it to "birth tourism" parents - what about everyone else?

Does at least one parent need to be a citizen? What about the children of those with permanent residency? Student visas? Work visas?

Since the path to citizenship takes several years, what is to be the status of all those non-citizens who are born in the US while their parents' naturalization is pending? They do not become citizens along with their parents unless they are named on the application.

And while you're at it - what about adoptees who are finding out NOW that their paperwork was never properly completed and they are at risk of deportation?

Please think these things through. The devil is in the details.

Aug. 04 2010 05:55 PM
Jay from California

The 14th amendment is the clearest law that we have and the most important. If you are born here you are a citizen and it isn't up to any official to bless your birth.

Without that provision of the 14th amendment we allow people who are in authority to decide who gets civil rights and who does not. It does not matter if you hide behind the statement that you are just limiting it to the children of illegal immigrants, you are still allowing the government to pick and choose who gets to be protected by the Constitution and who does not.

Aug. 04 2010 04:55 PM
Estela from White Plains, NY

If senators Jon Kyl, Lindsay Graham and Mitch McConnell are in the mood to review the Constitution, about the 14th amendment, can they please suggest hearing on the 2nd amendment and make illegal of the people to keep and bear arms in this Beautiful Country, what do they have to say about this?

Aug. 04 2010 03:55 PM
John in Manhattan from New York, NY

Hey Leah.

No offense, but the real "red herring" on this page is you claiming it's racist to talk about modifying application of the 14th Amendment to children of illegal immigrants.

France, German, the U.K., Norway, Sweden, Russia, Italy, Spain, Japan and South Korea (among many others) all deny automatic citizenship to Americans born on their soil.

Is that racist?

Aug. 04 2010 01:29 PM
Leah from Brooklyn

How disappointing that you're even honoring this red herring as a legitimate topic for debate. This whole "repeal" argument is a tactical ploy by Republicans to advance the conversation toward the right. Not a single legislator advocating this idea takes it seriously or thinks its political viable, but even introducing it into the discourse allows other approaches to appear less drastic - by comparison to this, even the Arizona "carry your papers" requirement seems reasonable. The Democrats did the same thing with health care, by the way: introducing ideas that were far left - all the while knowing they had no chance of getting passed - allowed them to move the center of the argument and get provisions passed that would have previously seemed too radical.

On a related note, it's truly hard for me to see anti-immigrant sentiments as much more than plain racism and xenophobia. Americans have long had these kinds of prejudices, which is particularly strange given that, since the native population of this continent was all but obliterated, most folks who want to limit immigration are themselves descended from immigrants, legal or otherwise.

Aug. 04 2010 11:58 AM
Robert Iyer from Beirut, Lebanon

The 14th amendment must be repealed. In many countries around the world, you must be a child of a legal citizen in order to acquire the citizenship of that country. Citizenship in any country should be earned legally. Either you are born in the US to legal residents or citizens, or you live in the US legally and apply for citizenship. Giving citizenship to newborns of illegals causes hardship to the US--currently 8 million problems in the US.

Aug. 04 2010 11:34 AM
Tami from South Florida

NO. At least, the mother should be a citizen of the U.S.A. I feel the 14th amendment is being abused.

Aug. 04 2010 11:06 AM

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