Constitutional Textualism, Undocumented Immigrants, and the Fourteenth Amendment
This article was originally serialized as a three-part post in History News Network.
Posting on History News Network, Elliott Young, professor of History at Lewis & Clark College, examined the Supreme Court decision in Department of Homeland Security v. Thuraissigiam (2020). Young described the decision as a “fundamental threat to equal protection of the law for all undocumented immigrants” that defied long established legal principles. I strongly support Young’s arguments and, in this article, I wish to extend them. Equally distressing is that it was a seven-to-two majority decision with Ruth Bader Ginsburg and Stephen Breyer joining the rightwing court bloc. Sonia Sotomayor and Elena Kagan posted a powerful joint dissent.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act “placed restrictions on the ability of asylum seekers to obtain review under the federal habeas statute.” In this case, Vijayakumar Thuraissigiam, an undocumented immigrant from Sri Lanka applying for refugee status because as a Tamil he faced beatings, torture, and death, claimed that since he had already entered the territory of the United States, he was entitled to due process. Thuraissigiam was represented by the American Civil Liberties Union (ACLU). The Court upheld the constitutionality of the 1996 law and ruled that he was not.
The majority decision for the rightwing bloc was written by Samuel Alito. Alito argued “Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope ‘when the Constitution was drafted and ratified’” and that the “respondent’s use of the writ would have been unrecognizable at that time.” Not once did Alito reference the 14th Amendment to the United States Constitution. Breyer and Ginsburg, in a concurring opinion written by Breyer, stated that they supported the court majority “in this particular case,” but not the broader assertions made by Alito.
In a dissent endorsed by Kagan, Sotomayor wrote that “The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice.” She argued “Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.” If Sotomayor is correct, and I believe she is, the Thuraissigiam decision puts all DACA (Deferred Action for Childhood Arrivals) recipients at immediate risk.
I’m not a big fan of the national Common Core Standards and its high-stakes standardized reading tests, but as a historian and social studies teacher, I like the idea that they promote close reading of text. Former Associate Supreme Court Justice Anton Scalia, the halcyon of judicial conservatism and the patron saint of the Supreme Court’s dominant bloc, justified his rightwing jurisprudence claiming to be a textualist. According to Scalia, “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
But, as Shakespeare reminded us in Hamlet’s famous “To be, or not to be” soliloquy, “There’s the rub.” There is always “the rub.” The problem, with both Common Core and Constitutional textualism is that words have different meanings at different times and to different people and sometimes words are chosen, not to convey meaning, but to obscure it. Understanding “words” requires historical context.
The word slavery did not appear in the United States Constitution until slavery was banned in 1865 by the Thirteenth Amendment because the Constitution, as originally written, represented a series of compromises and contradictions that the authors left to be decided in the future. It was a decision that three score and fourteen years later led to the American Civil War.
The humanity of Africans was generally denied at the time the Constitution was written; they were chattel, property. But in Article I, Section II of the Constitution, which established the three-fifth plan for representation in Congress, enslaved Africans are referred to as “other Persons.” And in Article IV, Section II, the Constitution mandates that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
I read text pretty well. As persons, enslaved Africans should have been included in the people of the United States who wrote the Constitution “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
But of course, they weren’t. Just reading the Constitutional text, without context, does not help us understand what Scalia called “the fairly understood meaning of those words.”
Unfortunately for the nation, political bias blinded Scalia while he was on the Supreme Court and blinds the rightwing cabal that dominates the Court today so badly that they just don’t read with any level of understanding and ignore historical documents. Because of this, one of the most pressing issues in the 2020 Presidential election is the appointment of future Supreme Court Justices who can read text with understanding, especially the 14th Amendment to the United States Constitution, and are willing to search for supporting historical evidence.
In his war on immigration, Donald Trump has repeatedly tried to implement regulations that speed-up dismissal of refugee claims so they can be thrown out of the country and others that permit the Department of Homeland Security to indefinitely detain families that cross the Southern border with Mexico into the United States without proper documentation. Trump calls constitutionally protected birthright citizenship “ridiculous” and says his administration is “looking very, very seriously” at ideas for stopping it because the promise that their children will be American citizens is a “magnet for illegal immigration.”
I am not an expert on magnets, but I do know what the Constitution says, why it was written that way, and what it means. In the 14th amendment to the Constitution, approved after the Civil War, national citizenship, including birth right citizenship, and the rights of citizens of the United States, were defined for the first time. According to Section 1 of the Amendment, “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 only persons born in the United States and excluded from automatic citizenship were Native Americans who were members of sovereign tribes and the children of foreign diplomats stationed in the United States. Native Americans were finally granted birth right citizenship by the Indian Citizenship Act of 1924. According to the 14th Amendment, the children of immigrants, both documented and undocumented, as long as they are born in the United States and subject to its laws, are automatically citizens whether their parents become citizens or not. Among other people, that included my parents – and by extension, me.
In addition, Section 1 states, “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.” Equal protection of the law, due process, the right to life, liberty, and property, are assured by the Constitution to all persons, not just to citizens, including undocumented immigrants. If we exclude some people from personhood rights, we return to a reading of the Constitution that allowed “other Persons” to be enslaved. To prevent this from happening again, Section 5 of the amendment granted Congress “power to enforce, by appropriate legislation, the provisions of this article,” but not the power to violate it.
The due legal process guaranteed to persons was earlier defined in the Bill of Rights. The Fifth Amendment bars prosecution for a crime without an indictment from a Grand Jury; the Sixth Amendment ensures that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”; and the Eighth amendment bans “cruel and unusual punishments.” All of these rights were violated during slavery days when Blacks had no legal rights, including a public trial before an impartial jury. The case against Solomon Northup’s kidnappers in Washington DC was dismissed because a Black man could not legally testify against whites. It is important to note that the Sixth Amendment does not make an exception denying legal protection to undocumented immigrants, while the Eighth Amendment would probably be read by a legitimate Supreme Court as denying the separation of children from their parents and indefinite detention at the border – and at Guantanamo.
The Fourteen Amendment was written to protect persons and to empower Congress to enforce their protection because before the Civil War, Fugitive Slave laws denied due process to persons accused of being runaway slaves. The Fugitive Slave Act of 1850, permitted someone to be detained based on an “affidavit made by the claimant of such fugitive”; provided for the appointment of commissioners who reviewed claims outside of regular judicial channels; required “marshals and deputy marshals” to enforce provisions of the act and paid them doubled if an accused fugitive was enslaved; established penalties for “any person who shall knowingly and willingly obstruct, hinder, or prevent” a “claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive”; and most disturbingly, a “deposition or affidavit” by a claimant against an accused freedom-seeker, was sufficient grounds for a commissioner to declare someone a fugitive and order them enslaved.
The phrasing of the 14th Amendment was also necessary because Supreme Court Chief Justice Roger Taney, in the 7-2 majority opinion he wrote for the Dred Scott decision, claimed that people of African ancestry “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” Taney, blinded by his bias against Blacks and determined to permit the spread of slavery into western territories, ignored the Constitutional provision that legal rights were guaranteed to persons, not just to citizens, and that Africans were recognized in the Constitution as persons.
In his dissent to the Dred Scott decision, Associate Justice Benjamin Curtis made clear that the ruling by Taney and the Court majority were in violation of both the text and intent of the Constitution, and after the decision was made, he resigned in protest. Curtis wrote that “At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.” In addition, the Constitution’s fugitive slave clause (Article IV, Section II) established the personhood of enslaved Blacks when it referred to them as “persons held to service in one State, under the laws thereof.”
Antonin Scalia, rejected examining the original intent of the authors of the Constitution and its amendments, claiming we cannot know what they meant by what they wrote. But the thing is, their explanations of the meaning of the text are often well documented, especially as in the case of the 14th Amendment. Fortunately, while many current justices, like Scalia was when he served on the court, are limited in their understanding of what authors mean by the text, historian don’t have those limitations.
The Congressional Globe, predecessor to the Congressional Record, contains verbatim debate over the Fourteenth Amendment including extended statements by Congressman John A. Bingham from Ohio (House of Representatives, 39th Congress, 1st Session), the principal author of the amendment, and an elected official who could read very well, especially when the text was the United States Constitution. Bingham’s extended comments on the 14th Amendment appear pages 1088-1094.
According to Bingham, “I propose, with the help of this Congress and of the American people, that thereafter there shall not be any disregard of this essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons – which includes every citizen of every state – their equal personal rights . . .” Bingham clarified, “the divinest feature of your Constitution is the recognition of the absolute equality before the law of all persons, whether citizens or strangers . . .” Based on this, Bingham advised President Andrew Johnson that “the American system rests on the assertion of the equal right of EVERY MAN to life, liberty, and the pursuit of happiness; to freedom of conscience, to the culture and exercise of all his faculties.”
As Bingham explained, “Equality before the law” under the Fourteenth Amendment means exactly what it says it means; it is a right guaranteed to “all persons, whether citizens or strangers.”
In his speech to Congress, Bingham echoed some of the arguments made by Frederick Douglass when Douglass rejected the idea that the United States Constitution was a pro-slavery document. Douglass denied “that the Constitution guarantees the right to hold property in man. Douglass believed “The intentions of those who framed the Constitution, be they good or bad, for slavery or against slavery, are so respected so far, and so far only, as we find those intentions plainly stated in the Constitution . . . Its language is ‘we the people;’ not we the white people, not even we the citizens, . . but we the people . . . The constitutionality of slavery can be made out only by disregarding the plain and common-sense reading of the Constitution itself.”
Bingham, who analyzed context, as well as text, stated that “everybody at all conversant with the history of the country knows that in the Congress of 1778, upon the adoption of the Articles of Confederation as an article of perpetual union between the States, a motion was made then and there to limit citizenship by the insertion in one of the articles of the word ‘white,’ so that it should read, ‘All white freemen of every State, excluding paupers, vagabonds, and so forth, shall be citizens of the United States.’ There was a vote taken upon it, for all our instruction, I suppose, and four fifths of all the people represented in that Congress rejected with scorn the proposition and excluded it from that fundamental law; and from that day to this it has found no place in the Constitution and laws of the United States, and colored men as well as white men have been and are citizens of the United States.”
Bingham turned the Comity Clause in the Constitution, which affirms that states must respect each other’s laws and was used by slaveholders to demand the return of freedom-seekers as stolen property, on its head. He argued it should be read as written; that “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” He argues “This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that instrument.” Essentially, Bingham believed, as did Douglass, that the slave states and slavery had been in violation of the Constitution all along, and the 14th Amendment, was need because its fifth clause empowered Congress to “enforce, by appropriate legislation, the provisions of this article,” hopefully eviscerating the ability of states and localities to defy the law.
Supreme Court decisions based on text without context have been responsible for some of the greatest perversions of justice in United States history. The 14th Amendment empowered Congress to pass laws ensuring the rights of citizens and persons. One of the first laws, the Civil Rights Act of 1866, predated approval of the amendment, so Congress ratified it again in 1870. In Congressional debate over the law, Representative James Wilson (Republican-Iowa) explained that it “provides for the equality of citizens of the United States in the enjoyment of ‘civil rights and immunities,’ and that the civil rights protected by the law are “those which have no relation to the establishment, support, or management of government” (Congressional Globe, House of Representatives, 39th Congress, 1st Session, 1115-1117).
Section 1 of the Civil Rights Act declared “That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement.” Again, a right granted to persons irrespective of citizenship. Section 2 described penalties for violating the law.
But in 1883, by a seven-to-one vote, the Supreme Court endorsed Jim Crow racism as the law of the land when it ruled the Civil Rights Act unconstitutional. Writing for the court majority, Associate Justice Joseph Bradley argued that the Thirteen Amendment, as written, outlawed slavery, not discrimination, and the text of the Fourteen Amendment only authorized Congress to prohibit government action, not actions by individuals or non-governmental groups.
The only dissenting voice on the Court was Associate Justice John Marshall Harlan who wrote “The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism.” Harlan attacked the decision because “the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted” and has “always given a broad and liberal construction to the Constitution, so as to enable Congress, by legislation, to enforce rights secured by that instrument.”
Harlan then cited an interesting precedent for his view of the Constitution – the Court’s position on Fugitive Slave Acts. According to Harlan, “Congress passed the Fugitive Slave Law of 1793, establishing a mode for the recovery of fugitive slaves and prescribing a penalty against any person who should knowingly and willingly obstruct or hinder the master, his agent, or attorney in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive,” a view upheld by the Supreme Court in its 1842 Prigg v. Commonwealth of Pennsylvania decision, which recognized the power of Congress to pass legislation enforcing the rights of slaveholders.
In a series of rhetorical questions about the Thirteenth Amendment, Harlan asked whether “the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom?”
Harlan warned, “Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class . . .”
It is significant that in 1896, Harlan was the only dissenting voice in the Supreme Court’s Plessy v. Ferguson legalizing the “separate but equal” doctrine that remained in affect until it was overturned in 1954 by the Brown v. Board of Education decision.
Returning to John Bingham and Congressional debate over the 14th Amendment, Bingham’s explanation of the amendment as an all embracing guarantee of civil rights was adopted by the woman’s suffrage movement, whose white leadership initially opposed the 14th Amendment because in its second section it included the word male, writing gender distinctions into the Constitution for the first time, and the 15th Amendment because it granted voting rights to Black men, but not white women.
In 1869, Attorney Francis Minor, whose wife Virginia was the President of the Woman Suffrage Association in Missouri, drafted a series of resolutions that were adopted by National Woman Suffrage Association and endorsed by Elizabeth Cady Stanton and Susan B. Anthony. Minor argued that the Fourteen Amendment barred “provisions of the several state constitutions that exclude women from the franchise on account of sex” as “violative alike of the spirit and letter of the federal Constitution.” Following up on these resolutions, in November 1872, Virginia Minor attempted, unsuccessfully, to vote in St. Louis, while Anthony and fourteen other women in Rochester, New York voted in the Presidential election and Anthony was later arrested. Francis Minor sued the St. Louis registrar because Virginia Minor, as a married woman, was legally not permitted to sue in her own right. In the case Minor v. Happersett (1875), the Supreme Court ruled that while women were citizens of the United States and the state in which they reside, the right to vote was a privilege not granted by the 14th amendment. John Marshall Harlan had not yet been appointed to the Supreme Court
In 1884, Susan B. Anthony testified before the Senate Select Committee on Woman Suffrage, “The Constitution of the United States as it is protects me. If I could get a practical application of the Constitution it would protect me and all women in the enjoyment of perfect equality of rights everywhere under the shadow of the American flag.”
Anthony’s testimony is of great importance today because the Supreme Court will be deciding a series of cases on the legal rights of both women and undocumented immigrants. Virginia recently became the thirty-eighth state to approve the Equal Rights Amendment, first passed by Congress in 1972. The amendment simply states, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The version passed by Congress included an expiration date, later extended to 1982. Congress and the Supreme Court most decide if the expiration date is Constitutional and if the United States now has a new 28th Amendment.
The Supreme Court decision on DACA was narrowly decided on technical grounds and the Trump Administration is pursuing new legal avenues to end legal protection for about 800,000 undocumented immigrants who arrived in the United States as children. If the Court ultimately overturns DACA and subjects DACA recipients to deportation, at issue will be their Constitutional right to due process under provisions of the 14th Amendment.