Keeping the Kettle of Divisiveness on the Boil

On Thursday, the day the 112th Congress was sworn in, the United States Constitution was read aloud in the House of Representatives, for the first time in history.  The version read was a sanitized one, and superseded portions of the nation's foundational document - language no longer in force because of amendments - was omitted.  Those in favor of that decision argued that they were focusing on the current law of the land, while those opposed were distressed at what they perceived to be a whitewashing of America's past mistakes, such as the language making African American votes worth only 3/5 of a white person's ballot.  Whatever one may feel about this choice, however, it is hard to argue that a brief refresher on the country's guiding principles is a bad thing.

What then, to make of H.R. 140, The Birthright Citizenship Act referred to the House by Iowa Congressman Steve King, just one day earlier?  Mr. King's bill seeks to end the practice of granting citizenship to children born in the United States to illegal immigrants, but it flies directly in the face of both established case law and, more importantly, the Fourteenth Amendment to the Constitution, which begins 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.

The Fourteenth Amendment is particularly clear in its language, and was written to address several key issues in the post-Civil War era.  First, it was a legislative response to the Supreme Court's infamous Dred Scott decision, which held that people imported into the United States as slaves - as well as their descendants, whether or not they were slaves themselves - were not, and could never be, citizens.  Second, it served to pre-empt any attempt by the judiciary to assess as unconsitutional the Civil Rights Act of 1866, which states that anyone born in the U.S. who is not subject to a foreign power is a citizen, regardless of race, color, or previous condition of involuntary servitude.  Finally, the 14th Amendment was a response to the so-called Black Codes, which arose in the American South in the wake of the Thirteenth Amendment's elimination of slavery and attempted to limit the civil rights of blacks.

This citizenship clause of the Fourteenth Amendment has been amply tested in court, most notably in the 1897 case of Wong Kim Ark, who was born to immigrant parents during a period in history when it was actually illegal for Chinese citizens to become naturalized Americans, as a result of the Chinese Exclusion Act.  The Supreme Court's decision in the case firmly established birthright citizenship as the law of the land more than a century ago, and as Justice Horace Gray noted in the majority opinion:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

Congressman King's initiative will not be surprising to anyone who has followed his statements and positions.  The Iowa Representative has claimed that the election of Barack Obama to the presidency would be a victory for Islamic terrorists, said that the president favors black people by default, and has made it clear he fears that Iowa could become a "gay marriage mecca."   In other words, Steve King is a man with a body of public statements that pretty clearly demonstrate he is an extreme nativist, as well as someone with a strong a fear of people not like himself.

What is remarkable, however, is the introduction of a bill just one day before a celebration of the Constitution that not only flagrantly disregards that very document, but which will clearly have no possible chance of accomplishing its intended goals.  The Fourteenth Amendment can only be changed by another amendment -  not through legislation - despite claims by Congressman King, who has already begun appearing on talkshows to promote the creation of a permanent American underclass that doesn't enjoy full rights.

Clearly then, H.R. 140 must almost certainly have another purpose, and it does.  Just as one of the signature Republican pledges for the new Congress is to hold a vote on repealing President Obama's health care reform legislation despite certain failure, Mr. King's birthright citizenship is not about substance, it is about stoking the fires of racial tension and part of a coordinated effort to keep Americans divided.