The United States is currently engaged in a divisive debate over immigration. The country seems divided, deeply torn in fact,over what to do about people coming to the United States from abroad. This debate has been around for as long as there has been a United States, actually, and the current debate certainly won’t be the last.
The history of immigration is fascinating, and reveals a very troubled past for the country. In this first post in What You Need To Know About Immigration series on immigration we will examine the 14th amendment, which has been used to expand the rights of immigrants and other non-citizens throughout American History.
I frequently hear my students and other arguing that terrorists and refugees do not have any rights in our country because they are not citizens. I find this to be a strange and amusing mistaken belief about the application of rights and protections in the United States.
Politicians are often the loudest voices in screaming that it is somehow weakness to afford legal protections to terrorists and immigrants, as if the idea of using the justice system was somehow unjust.
When considering how the protections of due process of law are and should be administered in the United States, we might consider my favorite amendment, the 14th.
The 14th Amendment of the United States Constitution reads as follows:
“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.”
The meaning of this is clear, and often misunderstood. The spirit of the 14th Amendment is often misunderstood. Passed by the Reconstruction Congress, it was designed to address the needs of the nation in the aftermath of the Civil War. The main issue, along with the readmission of the Confederate states, was what to do for the former slaves.
Debates raged over the status and rights of the former slaves, with Southerners still pressing forceful for no rights or citizenship for their former property. It’s galling to consider the strength of their racism, actually, especially when we consider they had just lived through the killing of nearly 750,000 Americans over their belief in white supremacy.
Thaddeus Steven, legendary Radical Republican congressman from Pennsylvania, helped to guide the 14th Amendment through the House of Representatives. He famously argued that the Amendment was necessary because,
“[Section 1] allows Congress to correct the unjust legislation of the states, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal protection’ to the black man.”
The essence of America’s greatness is her egalitarianism. Treatment of all equally is the secret to our liberal experiment. It is the core promise that keeps this civil society bonded together.
In essence, when equality fails, America fails.
Looking at the text of the 14th Amendment we can see the intention of the Republican majority on Congress when the Amendment was passed and sent on to the states.
The text describes the rights of citizens. It also makes a clear distinction between people and citizens. This is not an accident. The writers of this amendment we well versed in law and the crafting of legislation, and did not mince words easily. In order to make their intentions and the amendment clearly understood throughout time, they went to great lengths to express how due process should be applied.
It essentially has two parts in its first section, both referring to the law and citizenship.
The second half describes how the law should be applied to people within the United States. It says,
“…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.” (emphasis added)
Notice it does not say citizen. It clearly describes who is a citizen in the first part of the Amendment, and clearly does not use that word in the second part. It is making an intentional distinction in the Amendment because it wanted the protections of the Constitution, and due process specifically, to be granted to all people, and not just to citizens.
This is important because we are often hearing calls from politicians to deny people their due process rights because they are immigrants or suspected terrorists.
I always find it ironic because these same voices are the voices that often decry any breach of law and order, and yet are the first to deny law and order as intended by the 14th Amendment.
The meaning of the 14th Amendment is clear and important. The protections of the law are extended to anyone under the jurisdiction of the United States Constitution. Denial of these protections has been the mission of nativists and white supremacists. It has always been this way, unfortunately, as those who view America as a land of exceptionalism to deserve rights not extended to others.
What they get wrong about this exceptionalism is that the United States is exceptional because it extends rights equally to all people.
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