By Douglas V. Gibbs
A member of my Constitution Class recently wrote me: Yet another discussion on illegal immigrants and their rights within the United States. Other than his definition of "jurisdiction" being anyone living in the United States and his assumption that the Supreme Court has the right or job of interpreting the Constitution what other arguments can I give?
She then included information from the email she got from her detractor, which included three court cases;
-Yick Wo v. Hopkins (1886) "Court ruled that the 14th Amendment's statement, "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," applied to all persons "without regard to any differences of race, of color, or of nationality," and to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here."
- Wong Wing v. U.S. (1896) The Court, in the case of Wong Wing v. US, further applied the citizenship-blind nature of the Constitution to the 5th and 6th amendments, stating ". . . it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."
- Plyler v. Doe (1982) In Plyler v. Doe, the Supreme Court struck down a Texas law prohibiting enrollment of illegal aliens in public school.
Then, her email'r added:
When the Supreme Court decides cases dealing with First Amendment rights, it typically draws guidance from the 14th Amendment's principal of "equal protection under the law." In essence, the "equal protection" clause extends First Amendment protection to anyone and everyone covered by the 5th and 14th Amendments. Through its consistent rulings that the 5th and 14th Amendments apply equally to illegal aliens, they also enjoy First Amendment rights.
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."
The whole premise is wrong in the first place. The Constitution does not apply to any individual, it applies to the federal government. That said, you have to then look at individual clauses to determine what is meant, using original intent, and the definitions of the language at that time. We have to understand that the founders, largely because of the problem with loyalists to Great Britain, discouraged divided loyalties, and wanted to actually guard against those that had divided allegiances. When debating the citizenship clause of the 14th Amendment, the writers of that clause, Senators Howard and Trumbull, wished to be as consistent with original intent as possible.
Also, before I start breaking this down, we must also remember the danger of your detractors using court cases to determine the meaning of the Constitution. These folks have decided that original intent of the Constitution is not a good thing, but they are willing to throw in with the opinion of a single individual because he or she happens to be a judge. Allowing single individuals to dictate the meaning of the Constitution, even if it contradicts the definitions laid out by the founders, or the judgement of We The People, for some reason to these people is not tyrannical.
The word "jurisdiction" in the citizenship clause, according to the Congressional Globe, meant "full allegiance to the United States." How can someone be considered having full allegiance to our country if they were willing to break our laws in order to get into this country in the first place? Having no respect for American laws is hardly evidence that somebody has full allegiance to our country, its laws, and its customs. The Constitution was meant to protect citizens, who have full allegiance to this country, from the excesses of an overpowering central government.
A great explanation of the definition of "jurisdiction" can be found here: http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html
Also, we must consider that the Constitution applies to some non-citizens, for there are those that fall under the jurisdiction as I have defined it, but are here legally on a resident alien card, but not citizens, yet. Because they are under the "legal jurisdiction", the protections would extend to them, as well.
If constitutional protections apply to non-citizens, except those that are legal residents, going to war would be a moot point, because for every atrocity caused by the enemy, we would have to provide due process, including discovery, and the presentation of evidence. Anytime we wage war, the anti-war crowd can then argue that the enemy country being invaded is having their rights based on the Bill of Rights infringed upon. Now, piggy-backing on the arguments of your opposition, would those same factions be treated the same, or differently, if captured in the United States? Should we afford legal protections of the law to an enemy combatant who mercilessly killed Americans for his wartime cause, because he killed Americans within our borders, rather than in Iraq?
As for illegal aliens, and their "right" to constitutional protections, as non-citizens that have intruded upon our nation by breaking immigration law, should they be afforded the same protections as law-abiding citizens? The key comes down to the desire to protect us from those who have divided loyalties. In fact, in the case of illegal aliens, they are really nothing different than the member of an enemy faction in the United States, for like a terrorist group, they have invaded our nation. Should invaders receive those constitutional protections?
It may be prudent to return to definitions. The definition of invasion according to the American Heritage College Dictionary is: 1. To enter by force in order to conquer or pillage, 2. To encroach or intrude on; violate, 3. To overrun as if by invading; infest, 4. To enter and permeate, especially harmfully. Entering the United States illegally, which means the potential immigrants broke American immigration laws, the aliens have intruded, encroached, and indeed forced their way into the country.
Article IV, Section 4 states that the United States government will protect the States against invasion.
Surely, members of an invading force should not be afforded these constitutional protections.
As for a further argument regarding the applicability of the Constitution to citizens, and not non-citizens, you can also derive a definition from the Preamble, itself. The Preamble, though not holding any legal authority, as the Constitution's introduction it sets a few parameters and definitions. The first three words are "We The People," but We The People of what? "Of The United States." This would indicate that if We The People are "of the United States," it is citizens being referred to. Later, whenever the people is mentioned, which is throughout the Constitution, the people is defined by that first sentence, which indicates that the people are "of the United States," or "citizens," or at worst, citizens and legal residents. The Fourth Amendment begins "The right of the people. . . " Who are "the people?" We the People of the United States.
. . . and so on. This is, I think, a good argument that the Constitution was written to apply to the federal government, and to protect "citizens" from that central government.
Does one ever wonder why the Indians were not offered constitutional protections at the founding of the nation? They aren't citizens. They are people we made treaties with, and are not taxed (as stated in Article I, Section 2). The same can be said for illegal aliens. They have a loyalty to a different nation, of which we make treaties with, and except for sales tax (of which everyone pays upon purchase) they are not taxed.
The 14th Amendment, in the privileges and immunities clause even goes so far as to specifically state that it applies to "citizens of the United States." This means that the privileges and immunities afforded by the Constitution as written does not apply to non-citizens. Once again, a reasonable argument can be made that legal residents that are not citizens may be included in that.
In the end, however, even that is a moot point, because when it comes to our rights, they are fundamental. But if I abuse that right to the detriment of another's rights, then government must get involved to restrain me from bringing harm to those around me for the protection of the rights of others. So, one may ask if being in the country illegally interferes with the rights, or protections, of others living in this nation legally? Absolutely. My life, liberty and pursuit of happiness is interfered with when someone who broke the law, and is not even supposed to be here in the first place, is using up services, and funding, intended to support and protect my life, liberty, and pursuit of happiness.
As for equal protection under the law, that creates a fine line that is being crossed continuously. I do not believe that is an adequate argument for the incorporation of the Bill of Rights to the States, an affording "constitutional rights" to illegal aliens. If they want to get technical, believe it or not, James Madison actually suggested when he wrote the first draft of the Bill of Rights that they be applied to the States, but after considerable debate, both houses passed a version that did not apply to the States. In other words, even the Bill of Rights applies to the federal government to protect us from its tyranny.
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind. But this brings us back to "jurisdiction." Is jurisdiction granted by simply being in this country, regardless of citizenship? No.
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My answer:
Also, before I start breaking this down, we must also remember the danger of your detractors using court cases to determine the meaning of the Constitution. These folks have decided that original intent of the Constitution is not a good thing, but they are willing to throw in with the opinion of a single individual because he or she happens to be a judge. Allowing single individuals to dictate the meaning of the Constitution, even if it contradicts the definitions laid out by the founders, or the judgement of We The People, for some reason to these people is not tyrannical.
The word "jurisdiction" in the citizenship clause, according to the Congressional Globe, meant "full allegiance to the United States." How can someone be considered having full allegiance to our country if they were willing to break our laws in order to get into this country in the first place? Having no respect for American laws is hardly evidence that somebody has full allegiance to our country, its laws, and its customs. The Constitution was meant to protect citizens, who have full allegiance to this country, from the excesses of an overpowering central government.
A great explanation of the definition of "jurisdiction" can be found here: http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html
Also, we must consider that the Constitution applies to some non-citizens, for there are those that fall under the jurisdiction as I have defined it, but are here legally on a resident alien card, but not citizens, yet. Because they are under the "legal jurisdiction", the protections would extend to them, as well.
If constitutional protections apply to non-citizens, except those that are legal residents, going to war would be a moot point, because for every atrocity caused by the enemy, we would have to provide due process, including discovery, and the presentation of evidence. Anytime we wage war, the anti-war crowd can then argue that the enemy country being invaded is having their rights based on the Bill of Rights infringed upon. Now, piggy-backing on the arguments of your opposition, would those same factions be treated the same, or differently, if captured in the United States? Should we afford legal protections of the law to an enemy combatant who mercilessly killed Americans for his wartime cause, because he killed Americans within our borders, rather than in Iraq?
As for illegal aliens, and their "right" to constitutional protections, as non-citizens that have intruded upon our nation by breaking immigration law, should they be afforded the same protections as law-abiding citizens? The key comes down to the desire to protect us from those who have divided loyalties. In fact, in the case of illegal aliens, they are really nothing different than the member of an enemy faction in the United States, for like a terrorist group, they have invaded our nation. Should invaders receive those constitutional protections?
It may be prudent to return to definitions. The definition of invasion according to the American Heritage College Dictionary is: 1. To enter by force in order to conquer or pillage, 2. To encroach or intrude on; violate, 3. To overrun as if by invading; infest, 4. To enter and permeate, especially harmfully. Entering the United States illegally, which means the potential immigrants broke American immigration laws, the aliens have intruded, encroached, and indeed forced their way into the country.
Article IV, Section 4 states that the United States government will protect the States against invasion.
Surely, members of an invading force should not be afforded these constitutional protections.
As for a further argument regarding the applicability of the Constitution to citizens, and not non-citizens, you can also derive a definition from the Preamble, itself. The Preamble, though not holding any legal authority, as the Constitution's introduction it sets a few parameters and definitions. The first three words are "We The People," but We The People of what? "Of The United States." This would indicate that if We The People are "of the United States," it is citizens being referred to. Later, whenever the people is mentioned, which is throughout the Constitution, the people is defined by that first sentence, which indicates that the people are "of the United States," or "citizens," or at worst, citizens and legal residents. The Fourth Amendment begins "The right of the people. . . " Who are "the people?" We the People of the United States.
. . . and so on. This is, I think, a good argument that the Constitution was written to apply to the federal government, and to protect "citizens" from that central government.
Does one ever wonder why the Indians were not offered constitutional protections at the founding of the nation? They aren't citizens. They are people we made treaties with, and are not taxed (as stated in Article I, Section 2). The same can be said for illegal aliens. They have a loyalty to a different nation, of which we make treaties with, and except for sales tax (of which everyone pays upon purchase) they are not taxed.
The 14th Amendment, in the privileges and immunities clause even goes so far as to specifically state that it applies to "citizens of the United States." This means that the privileges and immunities afforded by the Constitution as written does not apply to non-citizens. Once again, a reasonable argument can be made that legal residents that are not citizens may be included in that.
In the end, however, even that is a moot point, because when it comes to our rights, they are fundamental. But if I abuse that right to the detriment of another's rights, then government must get involved to restrain me from bringing harm to those around me for the protection of the rights of others. So, one may ask if being in the country illegally interferes with the rights, or protections, of others living in this nation legally? Absolutely. My life, liberty and pursuit of happiness is interfered with when someone who broke the law, and is not even supposed to be here in the first place, is using up services, and funding, intended to support and protect my life, liberty, and pursuit of happiness.
As for equal protection under the law, that creates a fine line that is being crossed continuously. I do not believe that is an adequate argument for the incorporation of the Bill of Rights to the States, an affording "constitutional rights" to illegal aliens. If they want to get technical, believe it or not, James Madison actually suggested when he wrote the first draft of the Bill of Rights that they be applied to the States, but after considerable debate, both houses passed a version that did not apply to the States. In other words, even the Bill of Rights applies to the federal government to protect us from its tyranny.
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind. But this brings us back to "jurisdiction." Is jurisdiction granted by simply being in this country, regardless of citizenship? No.
-- Political Pistachio Conservative News and Commentary
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