Fox advances Pearce's false claims on 14^th amendment

Van Susteren hosts Pearce, who declares that the 14^th amendment “never intended” to apply to children born of “aliens, legal, or illegal.” On the August 12 edition of Fox News' On the Record with Greta Van Susteren, Pearce made several false and misleading claims about the 14^th amendment, notably arguing that it was intended for African-Americans alone, and not “aliens, legal, or illegal.”

From On the Record with Greta Van Susteren:

RUSSELL PEARCE (R-AZ): We have laws in this country. It's illegal to enter, illegal to remain. Yet we reward you with the birth, again, citizenship of those born called birthright citizenship. It was never intended to be a part of the 14th amendment. It'd be nice if people would get it right once in a while.

I mean, there's two Supreme Court decisions that make that clear. The debate, Howard Jacob - [Senator] Jacob Howards on the floor of the Senate, and Senator [Edgar] Cowan, in writing [inaudible] 1816 said this amendment does not apply to foreigners or aliens at all. Yet, we keep misapplying it. And that came from a court decision after the Slaughter-House and [Elk v. Wilkins] decision, which made it clear. And, like I said, the American Indians, there's no doubt where they were born, they were not considered citizens under the 14th amendment. Congress had to pass three times congressional acts recognizing the citizenship of the Indians.

VAN SUSTEREN: We can't get even equal rights -

PEARCE: It just has to be fixed.

VAN SUSTEREN: All right, we can't get equal rights for women in this country, so it seems profoundly unlikely to me that you're going to get a constitutional amendment to do way with the 14th Amendment. I just don't think it's going to happen because it's a tremendous [inaudible].

[...]

PEARCE: What we want to do is fix a bad policy, and a misapplication. It's an unconstitutional declaration of citizenship to those born to noncitizens. It was clear in the writing of the 14th Amendment, it never was applied that way initially. It became a policy later on that's been ignored. It's simply unconstitutional. And it was never meant to be. It was meant for the African-Americans and you know that. You know, it was written after a bad, bad decision, you know, that basically said African-Americans weren't humans. Congress rose up to the occasion [inaudible] the Dred Scott decision. And they said woah, let's pass the Civil Rights Act, 1866, that's not right. They did that. And they said let's go a step farther, let's do a 14th Amendment to protect them. They fixed a terrible wrong it was the right thing to do.

But that has been hijacked from the African-Americans. This was their amendment and didn't apply to anybody else. It applied to African-Americans for those whom we have jurisdiction, those five words that they love to leave out of the debate during that 14th amendment [inaudible] those whom we have jurisdiction. It was intended to fix a terrible wrong to give the African-Americans their rightful place at the table, recognize them legal, lawful citizens, not applied to aliens, legal, or illegal.

Fox & Friends advance Pearce's false claims during a report on calls to change the 14^th Amendment. The August 13 edition of Fox News' Fox & Friends uncritically aired Pearce's remarks from On the Record during a segment on calls to change the 14^th Amendment so that it did not apply to children whose parents are in the country illegally.

In fact, the 14^th Amendment does apply to U.S-born children of “aliens, legal or illegal”

Section 1 of the 14^th 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.

CRS: Congress “intended to extend U.S. citizenship” to everyone born in the U.S. regardless of “race, ethnicity or alienage of the parents.” The Congressional Research Service (CRS) stated in a September 2005 report:

Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents.

Supreme Court rejected claim that child born in the U.S. to foreigners was not a citizen. As CRS noted, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that “where birth in the United States was clear, a child of Chinese parents was, in the Court's opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law.”

The Court stated that long before the adoption of the 14^th Amendment, “all white persons” born in the U.S., including children of “foreigners,” were considered native-born citizens (provided that they were not “children of ambassadors or public ministers of a foreign government”), and that "[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States." The Court further stated:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

[...]

It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.

Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.

Historian Eric Foner: Pearce's claim that 14^th Amendment was only based on African-Americans is “completely false.” Colombia University historian Eric Foner stated during the August 2 edition of CNN's Anderson Cooper 360 Degrees that it's “not true” that the 14^th Amendment was not intended to apply to the children of aliens, adding, “The 14th Amendment was debated for months, and the wording was very, very carefully worked out. If they had meant to exclude any kind of people, aliens, children of aliens, they would have done so.” Foner further stated of the Citizenship Clause:

FONER: It was primarily to establish this unquestionable citizenship of African-Americans, which, before the Civil War, the Dred Scott decision has said no black person could be a citizen.

But it was also to create a national standard of citizenship for everybody, not just black people, children of immigrants, Irish immigrants, anybody. As you said before, it was debated about the Chinese on the West Coast. Everybody understood that this meant all persons born in the United States, with a couple of exceptions.

It didn't apply to Native Americans, because they were like members of their own little nations, their tribes, and it didn't apply to like children of diplomats born in an embassy or something like that.

[...]

COOPER: So, when those argue -- when -- the people who argue that this only was based on African-Americans, that's simply not true?

FONER: That's completely false. That's completely false

Moreover, Senate debate at the time shows Congress explicitly recognized impact of 14^th amendment on “aliens”

Sen. Jacob Howard, Republican of Michigan, proposed the Citizenship Clause and stated on May 30, 1866:

Mr. HOWARD: This amendment 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 by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.

Following Howard's statement, senators went on to debate whether it was wise to extend citizenship to the children of foreigners. During the May 30, 1866, Senate debate over Howard's proposed Citizenship Clause to the 14^th Amendment, several senators discussed whether it was a good idea to extend citizenship to the children of foreigners, as Media Matters for America has noted. The debate indicates that they believed the Citizenship Clause would apply to the children of foreigners. For instance, Sen. Edgar Cowan of Pennsylvania, who voted against the 14^th Amendment, aired his concerns that Chinese immigrants would overrun California. And Sen. John Conness of California stated:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

Former Thomas clerk: Repeal proponents' interpretation of Howard's statement “renders completely meaningless the subsequent dialogue,” and “nothing” indicates “drafters intended to draw distinctions between different categories of aliens.” James C. Ho, the solicitor general of Texas who previously clerked for Justice Clarence Thomas, worked in the Bush administration, and served as chief counsel to Sen. John Cornyn (R-TX), wrote in 2006 that “no Senator disputed the meaning of the amendment with respect to alien children” and “nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens.” Ho further wrote:

Repeal proponents contend that history supports their position.

First, they quote Howard's introductory remarks to state that birthright citizenship “will not, of course, include ... foreigners.” But that reads Howard's reference to “aliens, who belong to the families of ambassadors or foreign ministers” out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.

Legal scholar Garrett Epps: Restrictionist reading of Howard's statement is “strained.” Legal scholar Garrett Epps wrote in a recent working paper that “a review of the legislative debates” indicates that the Citizenship Clause “was designed to exclude two and only two groups” -- children of diplomats and “members of Indian tribes who maintained quasi-sovereign status.” Epps further wrote: “Originalism is often advanced as a methodology that holds promise for clarifying unclear portions of constitutional text or for filling lacunae in the document. That is not the use to which it is being put in the context of the Citizenship Clause. Here, the originalist claim is in essence that seemingly clear words mean something other than what they say; that the language was adopted with mental reservation or qualification that should prevent our giving them their plain meaning.” Referring to Howard's statement, Epps wrote in a footnote:

Professor Mayton reads this language as excluding the children of two classes of aliens from birthright citizenship: first, all “consular personnel,” and, second, “aliens.” That is, we should construe Howard as meaning that the citizenship clause will exclude the "two classes," consisting in essence of 1) the children of all foreigners and 2) the children of some foreigners. Professor Mayton considers his thesis confirmed because “at that time no objection was made.” The most logical inference to this reader is that no one objected because no one understood it in the strained way that Professor Mayton does. In descending so to the level of grammatical parsing, I feel that we in [are] in danger of leaving the world of constitutional history and entering some kind of Da Vinci-code alternate universe. That is, can we really suppose that this one ambiguous phrase spoken by one Senator, no matter how read, can supply us with a code key to general language adopted by both Houses of Congress and the legislatures of two-thirds of the States?

CAC chief counsel: “The language [Howard] used strongly suggests he was describing a single excluded class, limited to families of diplomats.” Elizabeth Wydra, the chief counsel of the Constitutional Accountability Center, a progressive legal group, wrote in May 2009 that Howard was likely referring only to “families of diplomats” and not to “foreigners, aliens” generally:

Opponents of birthright citizenship also cite a statement by Senator Howard, who introduced the language of the Citizenship Clause, that the amendment would “not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” But if Howard was intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so. The language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.

This interpretation of the Reconstruction Framers' views on the classes of persons excluded from birthright citizenship is clarified by a statement made just six days prior to Senator Howard's introduction of the Citizenship Clause. In an exchange on the Senate floor, Senator Wade acknowledged a colleague's suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating “I know that is so in one instance, in the case of the children of foreign ministers who reside 'near' the United States, in the diplomatic language.” He went on to explain that children of foreign ministers were exempt not because of an “allegiance” or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil: “By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States.” In light of the legislative history described above, it is highly unlikely that Senator Howard's comment regarding foreign diplomats means what opponents to birthright citizenship claim. A single comment plucked out of context should not be used to sweep aside the overwhelming text, history, and principles that point to the opposite conclusion.

Former Thomas clerk disputes claim that early Supreme Court rulings support case against birthright citizenship for “aliens”

Ho explains that neither Slaughter-House, nor Elk v. Wilkins support case for repeal. In 2006, Ho disputed claims that Supreme Court rulings in Slaughter-House and Elk v. Wilkins, which Pearce referenced on Fox, provided support to repeal the 14^th Amendment. Ho wrote:

Repeal proponents seek refuge in earlier judicial precedents. As detailed by the two dissenting justices in Wong Kim Ark, the Court did suggest a contrary view in the Slaughter-House Cases (1872), as well as in Elk v. Wilkins (1884).

First, repeal proponents cite a single sen­tence in Slaughter-House, stating that "[t]he 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." But that case did not ac­tually implicate the Citizenship Clause, so this passage is pure dicta. Moreover, the Court immediately backed away from this assertion just two years later in Minor v. Happersett. That same year, Justice Field (a Slaughter-House dissenter) adopted jus soli while riding circuit in In re Look Tin Sing, wholly disregarding the Slaughter-House dicta. And the Court itself, in Wong Kim Ark, disparaged the Slaughter-House state­ment as “wholly aside from the question in judgment, and from the course of reasoning bearing upon that question,” and “unsup­ported by any argument, or by any reference to authorities.”

Elk v. Wilkins fares no better. Elk involved Indians, not aliens, and it merely confirmed what we already knew from the 1866 Senate debate: that Indians are not constitutionally entitled to birthright citizenship. Repeal proponents hasten to point out that refer­ences to “allegiance” can be found in Elk, just as they can be found in the Senate debate. But again, these stray comments do not de­tract from the analysis. To the contrary, Elk specifically endorsed the view, later adopted in Wong Kim Ark, that foreign diplomats are uniquely excluded from the Citizenship Clause. That is unsurprising, for both Elk and Wong Kim Ark were authored by the same justice: Horace Gray. Repeal propo­nents thus find themselves in the awkward position of endorsing Justice Gray's majority views in Elk but distancing themselves from Justice Gray's majority views in Wong Kim Ark. Such tension can be avoided simply by taking Elk at face value - and by accepting Wong Kim Ark as the law of the land.