Repealing the 14th Amendment is wrong for America



The authors of the 14th Amendment forged a provision that changed our country forever, making us truly one nation after a long and bloody Civil War.  The Amendment requires every state in the union to ensure equal protection of the laws, due process, and the privileges and immunities of citizenship.  And it declares that “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.”

The Framers of the Amendment, like the provision itself, were at once visionary and pragmatic, courageous and unifying.  And their handiwork has rightly stood the test of time.  By contrast, repealing part of the 14th Amendment to change what it means to be an American is wrong for our country precisely because it abandons those principles.

The Framers were visionary because, among other things, they recognized that there would always be groups in our country who are so reviled that the citizenship of their American-born children would be threatened.  So while the Amendment was aimed primarily at ensuring the full inclusion of African Americans emerging from slavery, it does not single out any one racial group, but instead guarantees the citizenship of “all persons” born here.

The Amendment’s implications for the children of immigrants lacking legal status—Chinese immigrants, who were prevented from ever becoming American citizens due to the Chinese Exclusion Act—were debated at the time.  That the Amendment discusses neither “Negroes,” nor ex-slaves, nor the Chinese, but rather “all persons,” bespeaks the vision of a homeland that would transcend the hatreds and politics of any one moment in the nation’s future—including this one.

At the same time, the citizenship provision is intensely practical.  Those of us born here need take no blood oath, nor research our lineage.  We need not prove our parents’ heritage or pedigree, nor are we segregated into different classes or castes.  We are Americans.

This decision was courageous, bringing into the American family people, and their descendants, who many in the country still saw as inherently dirty or dumb, inferior or foreign, deceitful or disloyal.  The Framers recognized that seeing past the prejudices and pettiness of the day was crucial to building one nation, indivisible.  As one indication that they were right, it was at this point in our history that we began to refer to “the United States” as a singular rather than a plural noun.

Repeal would be as short-sighted as the provision is visionary.  It would allow the rancorous politics of the moment to deny a core constitutional freedom to 300,000,000 Americans citizens.  It would carve a single group of people—babies no less—out of a guarantee that was rightly granted to all of us.

At the same time, the proposal is not practicable.  If two-thirds of a gridlocked Congress and three-quarters of all state legislatures somehow mustered the consensus to repeal the provision, the result would be chaos—with citizen parents having to apply to a new bureaucracy to establish the citizenship of their children, and victims of fire or flood, among millions of others, no longer able to point to their birth place as proof that they are Americans.

Because opportunity and freedom are the reasons why immigrants come here, this damaging change would also fail to fix our broken immigration system.  Instead of eroding our constitutional freedoms, Senator Kyl and his colleagues should enact workable solutions to that system that uphold our nation’s values and move us forward together.

The vast majority of Americans support commonsense immigration reform that includes smarter border security and in which the 12 million undocumented immigrants in our nation pay all taxes, learn English, register, and begin an orderly path toward citizenship.  That’s a change that would uphold, rather than deprecate, the values that the 14th Amendment represents.

Alan Jenkins is Executive Director of The Opportunity Agenda, a non-profit public interest organization headquartered in New York City. He is a constitutional attorney who has served as Assistant to the Solicitor General at the U.S. Department of Justice, and as Law Clerk to U.S. Supreme Court Justice Harry A. Blackmun.