Does Exxon Have a Birthright?

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Published

February 2, 2006
OnTheCommons.org

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America is not the first entity to become a replica of the parent it rebelled against. Individuals fall into this trap, so why not groups of them called nations? In its path from colony to empire, though, the U.S, has played out a version of the drama that is uniquely its own, and that includes the role of privilege, especially the hereditary kind.

America set out to abolish hereditary privilege, as it existed in that day at least. Aristocracy was the mark of the parent — England — it so much wanted to cast aside. But slowly, new forms of aristocracy have crept back. For one thing there’s the class divide that the current Administration has done so much to widen. Its push to abolish the estate tax in particular would bring about exactly the conditions that Madison and Jefferson tried to prevent. Jefferson actually advocated a progressive land tax to counter large concentrations of wealth. “The earth is given as a common stock for man to labor and to live on,” he explained.

Then there’s the matter of citizenship itself. To the Founders, America by its very nature was a refutation of hereditary status. Our borders were open. Anyone could come. One of the grievances cited in the Declaration of Independence was that the British had impeded the flow of settlement. But over time the borders have closed. Citizenship itself has become a kind of hereditary entitlement. It might not seem that way to us. But ask the people from Asia or the South who risk their lives to slip under the “Golden Door.”

Now some in Congress want to close the door even more, most radically by altering the Constitutional definition of citizenship itself. There may well be a case for the policy they seek to establish, if not for their contention that the Constitution establishes it already. But if so then there are implications they will have to face, not least concerning the Constitutional status of that apple of their eyes, the business corporation. It turns out that the same provision Republicans want to narrow in regards to real persons, applies to these artificial ones as well.

That provision is the Fourteenth Amendment, which was written to ensure full citizenship to the former slaves. Until that time, citizenship was a matter primarily of state law. Citizens of the states became citizens of the United States, and entitled to the protections of the Bill of Rights. That didn’t work in the case of former slaves; and so the Fourteenth Amendment made citizenship national, for “all persons born or naturalized in the United States, and subject to the jurisdiction therefore.”

Those words seem pretty clear. But immigration opponents have teased out of them a controversy over something they call “birthright citizenship.” Mark that phrase. It is likely to become the “partial birth abortion” of the immigration wars. For more than a century, courts and federal agencies have interpreted the words of the Amendment to mean what they say: namely, that anyone born here becomes a citizen, regardless of the status of their parents. That includes tourists, people on work visas; and, most significantly, those here illegally.

Opponents have planted their banner on the qualifying clause, “and subject to the jurisdiction thereof.” It precludes, they argue, citizens of other countries. But even illegals clearly are subject to the jurisdiction of the United States, as they discover if they are caught, or commit a crime. The main people who aren’t so subject are foreign diplomats, who enjoy what is called “diplomatic immunity.” Diplomats are exempt even from parking tickets absent a special treaty; and courts with good reason have said the qualifying clause applies to them.

Opponents counter with statements from Senators at the time to the effect that the Fourteenth Amendment should not apply to the children of non-citizens. But such expressions of intent from individual Senators cannot nullify the clear meaning of the words, especially according to the “strict construction” that we are supposed to adhere to these days.

This is not to say that automatic citizenship, as it applies to children of illegals, is necessarily a good idea. A case can be made that conditions today are not what they were a hundred and fifty years ago. The U.S. no longer is a new nation with a seemingly limitless capacity to absorb newcomers. It has entered an era of limits, and immigration policy must acknowledge that; especially when it comes to the backdoor immigration that can result when illegals bear children here.

I might agree with that view myself. But then, the advocates of it should acknowledge that they have embraced what they themselves revile as the “liberal” view of the Constitution – namely, that changed circumstances require new interpretations and if necessary new measures. The advocates should acknowledge too the implications of these same limits when it comes to, say, suburban sprawl, and the use of water and fossil fuels.

They also should face up to the implications for America’s self-professed role as a beacon of equality in the world. People of means have no trouble getting in today. There are special visa programs for high tech workers and the like. The Rupert Murdochs have it even easier. It’s only the tired and the poor – the very people the Statue of Liberty purports to welcome – that we increasingly exclude.

But most important, if we are going to re-interpret the 14th Amendment as it applies to real people, then what about the artificial people called corporations that have gained succor under its wings? The Amendment, as written, clearly applies to the people in question – ie children born on this soil. It makes absolutely no mention of corporations, and there is no legislative history to suggest that Congress intended the Amendment to apply to them.

Yet now the same people who want to exclude people the Amendment does include, at the same time want to continue to include corporations even though the Amendment itself clearly doesn’t. Since the 1880s, the courts have ignored the clear meaning of the words. As a result they have bestowed upon corporations most of the rights intended for real people; and this is a main reason that taming them has been so difficult. It has enabled corporations to become the hereditary aristocracy of our age, with privileges and powers the rest of us do not have, and with the ability to live forever.

That came about through an egregious case of judicial activism – actually judicial staffactivism that would have partisans of the corporation in a frothing fury if the roles had been reversed. As I have recounted here before, the Supreme Court never actually dealt with the matter of “corporate personhood” in the case that supposedly established the principle. Instead, a clerk (an important position in those days) who formerly was a railroad lawyer wrote the conclusion himself, in a head note to the case, and courts have honored it ever since, as though the Supreme Court actually had said it.

Talk about liberal constructionism, and straying from the plain meaning of the text. The border-closers complain that automatic citizenship for children of illegals came about by a judicial mistake. Well, what about this one?

If these folks want to raise the issue of the 14th Amendment, and the persons to whom it was intended to apply, I say, “Bring it on.” The attack on “birthright citizenship” leads inexorably to questions about claimants to the Fourteenth Amendment who have no birthright at all, because no birth at all. Exxon, you’re next.

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