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In Consideration of the 14th Amendment

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Caitlin Stein
November 19, 2018

Introduction

The 14th Amendment of the United States Constitution was ratified in 1868. The provisions of this Amendment to the Constitution were added after the closure of the Civil War in 1865 for the purpose of establishing slaves “as free and equal citizens.” The original intent and the evolution of the Constitution have been argued for several decades. The 14th Amendment has recently come into the limelight when President Trump questioned the intentions of “birthright citizenship” as it applies to migrants. While most countries have clauses which support birthright citizenship, most countries do not have the same consequences as America. As the world’s most free and opportunistic country, American has found that many immigrants come to American soil to give birth, thus granting citizenship to children whose parents are citizens of other countries and not naturalized within our borders.

Original Intent versus Evolution of the Constitution

The Original Intent Theory of Constitutionalism claims that the original authors of the 14th Amendment only intended for newly freed slaves to be legalized after the closure of the Civil War during the period of time when states were being reintroduced into the Union. As such, it can be concluded that the 14th Amendment was never intended to cover migrants from other countries who came to American soil of their own free will but instead was created for the sole purpose of providing natural rights and liberties to the slaves who were brought to America against their will and later freed. The 14th Amendment has since been used in landmark cases relating to interracial marriage, abortion and same-sex marriage.

As such, one would assume that the original intent of the 14th Amendment, to naturalize freed slaves, has been used in the Evolution of America, and thus creating a fundamental assertion that the Constitution is applicable to America’s evolution. This argument claims that the original intent of the Constitution is without basis in current day American due to the vast changes and growth. The Constitution remains a document built in past centuries and cannot possibly be applicable to current problems. This brings us to another issue. Should the Constitution be amended to include foreign-born migrants who were not brought to America as slaves, amended to specify the original intent, be considered an evolutionary document which requires changing intents with changing times, or should an executive order be a viable option to add to a historical and well-versed document?

Effects of a Change to the 14th Amendment

If President Trump does issue an Executive Order removing birthright citizenship to children of migrants, what will be the effects to current and future citizens?  The process of obtaining a birth certificate and social security card are pretty seamless and able to be completed by mail for newborn children. All required documents are provided after birth by the hospital with easy to follow instructions. A huge concern is whether this new executive order would cause undue hardship on current and future citizens.

The implementation of red tape requiring parental citizenship would likely result in the requirement of the parent to provide proof of their own citizenship. Many states have statutes which disallow a photocopy of a birth certificate to be used for validation, thus resulting in the requirement of a new parent to attend a government-affiliated office for validation of their own birthright prior to issuing a new child’s documentation. According to the Centers for Disease Control and Prevention’s statistics, there were 3,945,875 births registered in the United States in 2016. The hindrance to any government office which attempts to keep up with these numbers is unfathomable.

Would citizenship acquired at a later date cause difficulty or the loss rights to a child born in the United States prior to the legalization of the parent?  Would a minor child be automatically eligible for citizenship if their parent was legalized if they were also born in the United States during a period that the parent held a Visa or other papers granting legal entry?  Should the Constitution of the United States be altered by Executive Order?

Conclusion

In short, there many questions which must be taken into consideration prior to taking any action related to the Constitution. Whether one believes in the Original Intent Theory or the Evolution of the Constitution, America has been functioning based on one method for so many years, that any small change will cause great repercussions. Although the Constitutional Amendment was created in an effort to naturalize the current slaves, it has been used for a different intent for many years. In addition, there are many who believe that the Constitution was a congressionally mandated document of the utmost importance and must only be changed by a further mandate from Congress in order to ensure that the protections caused by the Constitution are upheld.


Author: Dr. Caitlin P. Stein, DPA. Caitlin Stein graduated with her Doctorate in Public Administration in 2017 and supervises the legal team with a locally owned finance company. She is a mother of two boys, happily married and a freelance writer in between. [email protected]

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The American Society for Public Administration is the largest and most prominent professional association for public administration. It is dedicated to advancing the art, science, teaching and practice of public and non-profit administration.

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