Commentary: 14th Amendment and birthright citizenship

I'm partial to keeping the 14th Amendment to the Constitution as it is. That is probably no revelation. The 14th Amendment is, after all, the seminal law that overturned the U.S. Supreme Court's 1857 Dred Scott decision which had declared that blacks were not citizens of the United States and therefore had no rights as citizens.

It might surprise some to know that the 14th Amendment was the second attempt by Congress to grant citizenship rights to blacks - and others - following the Civil War and emancipation. On April 9, 1866, Congress passed its first Civil Rights Bill giving blacks the rights and privileges of citizens. But the citizenship rights of blacks were continually and flagrantly denied in the South.

President Andrew Johnson, a Southerner born in Raleigh who lived much of his life in Tennessee, vetoed the act and later wrote, "This is a country for white men, and by God, as long as I am President, it shall be a government for white men." So, fearing that the Supreme Court might declare the Civil Rights Act unconstitutional, Congress - led by Republicans - decided to embed those rights in the Constitution and passed the 14th Amendment. The amendment was ratified in 1868.

The amendment didn't just address the citizenship rights of former slaves. It takes note of "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" as citizens. And the 1868 debate in Congress made clear that children of undocumented immigrants were to be included.

One of the Observer's sister papers in California, The Sacramento Bee, wrote recently of these remarks from Sen. John Conness, a California Republican, who in 1868 made a case for the children of Asian parents, who at the time were unable to attain citizenship. "We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others," he said.

Still, there is a history in this country of attempts to exclude people born in this country from birthright citizenship. In that sense, the current hoopla, spawned this time by illegal immigration and unacknowledged xenophobia, has tentacles that go back almost as far as the 14th Amendment itself. Consider:

In 1898, in the United States v. Wong Kim Ark, the Supreme Court ruled definitively that a person who is born in the United States, even if his parents are non-citizens and subjects of a foreign power, can be considered a citizen. The case centered on a man born in San Francisco to alien parents who later returned to China. When Wong visited China, he was denied re-entry to the U.S. when government officials declared he wasn't a citizen. But the court said he was - by virtue of the 14th Amendment.

While serving in Congress from 1915-1921, U.S. Sen. James D. Phelan, R-Calif., mounted an unflagging campaign to change the birthright citizenship clause. He offered a 1920 amendment that would not allow immigrants' children the right to citizenship just because they were born on U.S. soil. He lost re-election, and the campaign died.

In 1924, in Bolte v. Cohen, the U.S. District Court of Eastern Louisiana heard a case challenging the very validity of the 14th Amendment. The case sought to prevent a black man from doing the job of comptroller of customs for New Orleans, alleging he was not a U.S. citizen. The complaint said blacks were not citizens because the 14th Amendment had not been proposed by two-thirds of both houses of Congress nor ratified by three-fourths of the states. The judge dismissed the case.

All those attempts were wrongheaded and unwise, as were attempts to deny birthright citizenship to Native Americans. It took more than a half century after the 14th Amendment for Congress to grant them birthright citizenship in the Indian Citizenship Act of 1924.

This recent effort to change the 14th Amendment, with legislation introduced in Congress (with nearly 100 sponsors, no less) and in at least two states, joins that imprudent bunch.

The lawmakers pushing this folly are doing citizens a disservice. Targeting the birthright citizenship of children of illegal immigrants is a distraction that plays on people's biases and fears. But it won't fix the country's immigration problems. To do that, lawmakers need to act on a comprehensive immigration reform. But they haven't, and so far seem disinclined to.

Instead, they want to rev up public ire and divide the nation over a law that is the bedrock of American ideals. We should not let them.