Is there an actual reference for this, or is it just the author's conclusion? Because it seems highly incongruous to me that Congress can make state citizens out of foreigners, via the naturalization clause, but can't make state citizens out of people within its own territories.
National Constitution Center: Interactive Constitution Although the Thirteenth Amendment abolished slavery, it did not resolve the legal status of former slaves under federal and state law. After the Civil War, many southern states passed "Black Codes" designed to severely restrict the lives of newly freed slaves and keep them in virtual slavery. Through the Fourteenth Amendment, former slaves were granted citizenship and promised "equal protection of the laws." This protection from unreasonable discrimination eventually extended to other groups as well. The Fourteenth Amendment became the basis for claims of legal equality.
Because the Fourteenth Amendment specifically addressed the states, it drastically expanded the reach of the U.S. Constitution. The Supreme Court used the amendment to apply most provisions in the Bill of Rights to state governments. As a result, the Fourteenth Amendment is cited more often in modern litigation than any other. In fact, many constitutional scholars believe that, through its wide scope and promise of equality, the Fourteenth Amendment created a new Constitution.
Failed Ratification of Fourteenth Amendment Congressional Record -- House, June 13, 1967, page 15641, H7161
THE 14TH AMENDMENT - EQUAL PROTECTION LAW OR TOOL OF USURPATION
(Mr. Rarick (at the request of Mr. Pryor) was granted permission to extend his remarks at this point in the Record and to include extraneous matter.)
Mr. RARICK. Mr. Speaker, arrogantly ignoring clear-cut expressions in the Constitution of the United States, the declared intent of its drafters notwithstanding, our unelected Federal judges read out prohibitions of the Constitution of the United States by adopting the fuzzy haze of the 14th Amendment to legislate their personal ideas, prejudices, theories, guilt complexes, aims, and whims. Through the cooperation of intellectual educators, we have subjected ourselves to accept destructive use and meaning of words and phrases. We blindly accept new meanings and changed values to alter our traditional thoughts.
We have tolerantly permitted the habitual misuse of words to serve as a vehicle to abandon our foundations and goals. Thus, the present use and expansion of the 14th Amendment is a sham -- {H7162} serving as a crutch and hoodwink to precipitate a quasi-legal approach for overthrow of the tender balances and protections of limitation found in the Constitution.
Government by Judiciary: The Transformation of the Fourteenth Amendment Second Edition. By Raoul Berger
Berger famously argued that the great 1954 school desegregation case of Brown v. Board of Education was incorrectly decided because the framers of the Fourteenth Amendment did not intend its equal protection clause to require racial integration of the public schools. According to Berger, the sole purpose of the Fourteenth Amendment, which was ratified in 1868, was to reinforce the federal Civil Rights Act of 1866 and protect it against repeal by a future Congress.
And it is all so very unfortunate
Contrary to the misrepresentations emanating from friends of big government, the Constitution did not create a national system of government or consolidate the States or their people into a single nation.
According to Madison in making his argument for the ratification of the Constitution to the American people it did.
James Madison, Federalist #39:
- "The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character;"
The Constitution was simply a continuation of the federal system of government established by the Articles of Confederation.
Hardly!!
James Madison, Federalist #45:
- "The change relating to taxation may be regarded as the most important; and yet the present [Continental] sic Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future [Constitutional] Congress will have to require them of individual citizens;
James Madison, Elliots Debates Vol 3 p128:
- "If a government depends on other governments for its revenues -- if it must depend on the voluntary contributions of its members -- its [*129] existence must be precarious."
- "If the general government is to depend on the voluntary contribution of the states for its support, dismemberment of the United States may be the consequence."
- ``A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.'' Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.
Under this system, the federal government would act as the agent of the States and its powers would relate to mutual relations between the States and external or foreign affairs.
False Premises makes for False Conclusions.
From that opinion:
Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)Note that Justice Miller used the words, "was intended to" as if he were relating a fact of history and not merely stating an opinion. Given that he was a contemporary of those who authored the amendment, it is clear that the original intent of the language was to prevent what is happening now: women jumping the border and bearing an American citizen.
Opinions
MILLER, J., Opinion of the Court
"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 first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
Few residents of the 50 states are aware of, let alone understand this fundamental Constitutional principle. Most Americans today consider themselves RESIDENTS of a state, but CITIZENS of the United States — and neither the states nor the feds do anything to disabuse the people of this false notion. This, of course, is due to a long-standing failure to responsibly and accurately teach the Constitution and Constitutional history in our schools. I don't know the remedy for it at this stage in our history.
The law: FORTIETH CONGRESS, Sess, II, Ch. 248,249,1868, CHAP.CCXLIX. - An Act concerning the Rights of American Citizens in foreign States.
Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness, and whereas in the recognition of this principle this government has freely Received emigrants from all nations, and invested them with the right of citizenship; and whereas it is claimed that such American citizens, with their descendants are subject of foreign states, owing allegiance to the governments thereof, and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore,
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any declaration, instruction, opinion, order, or decision of any offices of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.
Sec. 2. And be it further enacted, That all naturalized citizens of the United States, while in foreign states, shall be entitled to, and shall receive from this government, the same protection of persons and property that is accorded to native born citizens in like situations and circumstances.
Sec.3. And be it further enacted, That whenever it shall be made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons for such imprisonment, and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, it shall be the duty of the President to use such means, not amounting to act of war, as he may think necessary and proper to obtain or effectuate such release, and all the acts and proceedings relative thereto shall be as soon as practicable be communicated by the President to Congress. Approved July 27th, 1968.
Please note that a foreign state is any union state outside of the Federal Zone: i.e. Virginia, Maryland, California and etc. The state of Puerto Rico or Guam are not foreign because they belongs to the government. Also, each of the union states is foreign to each other.