Communique August 13, 2020 The Anti-Bannon & Birther Canon Apply Liberally and as Often as Needed
By Philip Drucker
Ready for a quick refresher course on the 14th Amendment? As always, we begin our discussion and analysis by looking at the black letter words of the Amendment itself and then by adding in historical context we get a chance to contrast, compare and make a good assumption as to how it might be applied to our situation today.
Accordingly, the 14th Amendment, section 1 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.”
Ratified in 1868, the 14th Amendment was one of three post-civil war amendments added to the Constitution in large part to establish a constitutional basis for the civil and legal rights of the newly freed slaves. Freedom of person and equality under the law for our now and future fellow Americans were the primary goals. But this is what really happened. Favor me for a moment and let’s all start our inquiry with the word jurisdiction.
I define jurisdiction as the official, sanctioned by law, power to make legal decisions and judgments. In the United States, jurisdiction is for the most part based upon either subject matter, as in matters reserved by law to the Federal government, for example constitutionally based copyrights and patent laws, and Diversity of Citizenship, here due to the case and controversy involving two different litigants from different states, making no one state the proper forum for adjudication, it falls again to the Federal Courts for trial, judgment and hopefully justice.
What we are interested in today is a third type of jurisdiction, this time not based on any claim of prior right by the nature of the case, or the different and competing domiciles of the litigants, but by get this, territory or, because you are here, on our land and within its established borders, that by this fact alone, where you are, you have consented by your presence to have your matter adjudicated within to our jurisdiction and subject to the laws of the “land”. Here is where the 14th Amendment gets a bit tricky as in what land are we talking about? The State, or the United States of America, both separate sovereigns as a matter of right?
Before the Civil War, it was generally assumed the individual States were the stronger sovereign with Virginia being the “real” center of power in the USA. However, with the growing awareness many of the states would not “play fair” with the newly freed slaves (boy how right they were) the Second Framers decided to start defining individual rights on the national level. As in, you are first and foremost a citizen of the United States, and no State deny you the Privileges and Immunities granted all citizens subject to Federal jurisdiction before application of any State laws can attach. Meaning, there are some rights you have because you are a citizen of the United States and not dependent on any laws of any separate state.
Who these citizens of America are is dependent not so much on who you are, but where you are. Territory. Beginning with “all persons born or naturalized in the United States…” Meaning, if you are born here, within sovereign American territory, expanded to include citizenship by lineage (mom and dad) you are an American. Period. Full stop. This is territorial jurisdiction and here, in the USA, that’s what we use.
With that said, you will find the occasional faux constitutional scholar claiming the opposite, but as it usually turns out, this would be the opinion of a fruitcake that only likes the original 12 Amendments and for whatever reason, disputes even the rights of the Second Framers to enact the 13th, 14th and 15th Amendments. Don’t waste your time. Move on. Suffice to say, in America, when it comes to natural citizenship, territory is king.
Privileges Or Immunities Of Citizens Of The United States
So, what exactly are some of these privileges and immunities granted to all citizens of the United States? If we include the fundamental rights afforded all US citizens under the aptly named Privilege and Immunities clause of Article IV, we all have the right to travel from state to state, and to vote in whatever state we claim domicile in, regardless of our state of origin. Tangential rights would include the right to cross lines to seek work, equal opportunity to access and receive state benefits, including welfare and other state assistance programs available to all residents. This is essentially the reason you don’t need a passport to go from state to state, yet.
Further Supreme Court case law defined the 14th Amendment as applying only to the actions of the State and unlike the 13th Amendment which abolished the institution of slavery, does not apply to individual citizens. It seems simple enough when applied to Reconstruction era post-war America. We found ourselves with a new population of persons who were ready to become part of American society and to ensure equal treatment under the law, the 14th Amendment subjected the individual States to at a minimum, offer all persons, born or naturalized in the United States the rights and protections afforded under the Bill of Rights.
Additional case law has found virtually every section of the Bill of Rights, incorporated, or applicable to the actions of the State meaning, no state can offer you, the citizen on American soil, less protections than afforded within the Constitution. It is the floor under the rug under which no state (although they try) may legally sweep their discriminatory laws. Move over Virginia, for suddenly you are sitting in Uncle Sam’s seat.
Due Process of Law/Equal Protection
Add in the Due Process and Equal Protection Clauses contained with the 14th Amendment and the “bundle of rights” afforded under the 14th Amendment starts to make quite a bit of straight up sense, no? Equality in application of the laws of the land to anyone and everyone who is subject to our territorial based jurisdiction system. In fact, recent case law has expanded the reach of Due Process and Equal Protection to get this, anyone and everyone who is on American soil, or within our custody, even including enemy combatants held in Gitmo.
Yes Virginia, there is no Santa Clause, but if you are “here” no matter your additional status, immigrant, documented, undocumented, lightly salted, low fat, you have some rights under the US Constitution. Remember life, liberty and the pursuit of happiness? It turns out those hallowed words are indeed applicable to everyone. Remember liberty and justice, for all? As it turns out, when we are talking about Due Process and Equal Protection under the law, “for all” does mean, “for all”. Unless of course, you are an out of touch constitutional originalist, then “all” equates to rich white male land owners which if you think about it, it certainly would bring up the issue of in this the 21st Century, who exactly are “We, the People”? Let’s leave that melting pot of multi-ethnic gumbo simmering for now. Shall we?
On August 12, 2020 Joe Biden announced Kamala Harris would be his running mate and potentially the next Vice-President of the United States of America. Kamala is a woman of color, and as it turns out, many “colors” indeed! She was born to a mother from India, and a father from Jamaica. Neither of her parents were American citizens, natural or immunized when she was born. Already, the “birther” movement has raised its ugly, racist head to “disqualify” Kamala from running for VP as she is not a citizen of the United States. Kamala Harris was born in Oakland, California, USA. Under the 14th Amendment, she is an American citizen. Full stop. Drop mic.
If you hear otherwise, it’s Elmer from somewhere deep inside the rabbit hole trying to justify his or her racist, discriminatory and unconstitutional rubbish as “patriotic” or “under color of law” or whatever phrase he or she heard last night on the Sean Hannity Comedy Hour. My advice? Ignore the static, follow the signal. We have far more important things to do and, if nothing else, now we know the 14th Amendment is on our side. Think I’ll go out and buy some stamps today. Today is a great day to be an American, isn’t it?