“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of “effective leadership” in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the illegal immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide “effective leadership” simply because the political branches of government fail to do so.”
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The case is Plyler vs. Doe, 1982. The 5-4 majority opinion was written by William Brennan.
The issue before the court so long ago was the same issue that vexes us today – illegal immigrants. In Plyler, the Supreme Court struck down a Texas statute that withheld state funds from local school districts for the education of “children who were not legally admitted into the United States.”
The crux of the matter was this clause from Section 1 of the Fourteenth Amendment:
…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.
Mr. Justice Brennan, believing that the Constitution should be interpreted based on what it says and not based on what someone wishes that it said, made the obvious conclusion that even illegal immigrants in Texas are “persons within its (Texas’) jurisdiction.”
How could he have ruled otherwise? Some call that “judicial activism.” I call it plain English. Anyone who doesn’t like the outcome will need to amend the text of the 14th Amendment.
What I can’t understand is how the four learned dissenting Justices found a way to ignore the plain meaning of that sentence.
The kewpie doll wins the prize.
Probably because the holding of Plyer (and Graham v. Richardson, and In Re Griffiths, and Nyquist v. Maucet) reversed the law that was recognized and affirmed in Heim v. McCall, which actually respected the notion of federalism, limited federal authority, and the valid exercise of powers by the states that are not specifically granted to the government.
Authority to establish a uniform rule of natualization is specifically delegated to Congress in the Constitution. It wasn’t until Graham in 1971 that the Court was possessed of the notion that the Fifth and Fourteenth Amendments extended to non-citizens a right to equal access to benefits, thus abbrogating the states’ individual inherent authority to determine if, and to what degree they will make social welfare benefits available to non-citizens.
It was and remains a blatant usurpation of power not delegated to the federal government, exacerbated by the government’s unwillingness to enforce immgration law, and preserve more than a semantic difference between the status of citizen and noncitizen.
Plyler…reversed the law that… actually respected the notion of federalism, limited federal authority, and the valid exercise of powers by the states that are not specifically granted to the government.
That all sounds very learned and impressive. But when you read the phrase “nor deny to any person within its jurisdiction the equal protection of the laws,” what do YOU say that means? That use of the term “person” rather than “citizen” is a mere “semantic difference”? What part of “any person” isn’t perfectly clear to you?
This is what drives me crazy about this nonsense of “originalism.” Originalism means “Never mind what the Constitution says – we need to figure out not what it says, but what they meant when they wrote it.
You do realize that it is not yet settled law that all the Amendments actually apply to the states, right? That is why while Heller was important in actually establishing that the federal government was not free to abridge the rights conferred upon citizens by the Second Amendment, cities like New York City and Chicago still have ridiculous gun control laws on the books that do not actually reduce gun crimes, but do make sure that law-abiding citizens are left unarmed in the face of criminals who don’t really care to subject themselves to such laws.
Then there is also the little matter of how liberals always whine about the disrespect of the canon of stare decisis when it overturns something they want to keep. The rationale set forth in Heim was crystal-clear, and it respected those various concepts that I mentioned in my previous comment. The fact is that if you continue to permit the federal courts to dictate to the states in matters to which they have no enumerated jurisdiction, then you have no federalism. Period. The separation of powers wasn’t just an ideal. It wasn’t just an aspiration. The people who wrote the constitution knew all to well of the dangers of an all-powerful central government, and for that reason, were very careful to limit the things that it would have jurisdiction over, reserving the other matters to the state and to the people so that we wouldn’t be burdened with a multi-headed hydra attempting to micromanage every aspect of our daily lives, as tyrants are wont to do.
And your snit about originalism simply is not true. When I finally get done with a tedious and fallacious law review article by a wrong-headed Yale law prof, I’ll get my notes together and present a post on the subject.
It wasn’t until
Graham in 1971Brown in 1954 that the Court was possessed of the notion that the Fifth and Fourteenth Amendments extended tonon-citizensblacks a right to equal access to benefits, thus abbrogating (sic) the states’ individual inherent authority to determine if, and to what degree they will make social welfare benefits available tonon-citizensblacks.There – fixed it for you. Sounds a whole lot like George Wallace, doesn’t it?
I knew that sooner or later, you couldn’t resist playing the race card. I’m only surpised that you got to the bottom of your bag of tricks so soon.
There is, of course, the obvious distinction. Brown was a citizen. And yes, it makes a difference. I know you want to hang your hat on “person”, but it generally is accepted my many legal scholars that the Fifteenth Amendment is not really the best written amendment in existence, and there is no indication that the radical reconstructionist Congress in the wake of the civil war would have meant “person” to be applied to non-citizens, especially in light of the fact that it also stripped Confederate leaders and politicians of their citizenship as punishment, with one of the specific intents being that they would not have the right to stand for office or elect others to office. Turning around and drafting amendments to include them because of the use of the word “person” would have defeated the purpose, would it not?
The recasting of my statement is neither clever, or accurate. Brown had nothing to do with the Fifth Amendment, which concerns criminal protections. It also was not concerned with the Fifteenth Amendment. Brown wasn’t trying to vote, Brown was trying to go to school with the white kids. You fixed nothing, but you did show that the need to declare something you don’t like “racist” overcomes your good sense and ability to present an argument that a high school student in a well-taught civics class could shoot full of holes.
And it is likely that Brown never would have been necessary if an activist Court could have given the Fourteenth Amendment its clear and desired meaning when it decided Plessy. Instead, the majority, lead by Justice Brown determined “We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.”
So instead of giving the law the effect intended (and which you obviously agree with, given our past discussions and your citation of Brown here, it should be obvious to even you, that Plessy was the result of a Court that chose to put its own meaning on the Fourteenth Amendment rather than that which was so clearly intended, making the fiction “separate, but equal” the law of the land, and making Brown necessary. Originalism was not employed in this case, and as a result, the government was made a participant in the perpetuation of racism long after a bloody conflict should have ended such a role.
You do realize that it is not yet settled law that all the Amendments actually apply to the states, right?
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.
I kinda think that the Fourteenth Amendment applies to the States. Unambiguously.
“Race card?” That’s just silly, and I’m not buying it. You ought to be ashamed of yourself – you sound like Elric. (That is NOT a good thing.)
As you may recall, the Fourteenth Amendment was passed to clarify the status of former slaves. So it’s very hard to discuss the 14th without the context of former slaves. Can’t you even agree to THAT?
And your arguments do echo the nonsense spouted by the segregationists who so hated the “activism” of the Warren Court. Obviously you agree that those arguments were misapplied in the case of Brown. Perhaps you can also agree that the same arguments applied to Plyler are tainted by the same stink. That doesn’t make them wrong in itself. It only makes them… stink.
Plessy was the result of a Court that chose to put its own meaning on the Fourteenth Amendment rather than that which was so clearly intended.
I actually agree with you that the authors of the 14th Amendment likely did not foresee the issue of illegal immigrant children attending public schools. So what? The law is the law. I say follow it to the letter or change it, but don’t twist it until no one can recognize it any more, just because you don’t like the outcome.
“…there is no indication that the radical reconstructionist Congress in the wake of the civil war would have meant “person” to be applied to non-citizens.”
My God, man. You are just shameless!
The “indication” is that <b<they did NOT use the word "citizen" – they used the word "person." They were NOT too stupid to know the difference. It is outrageous to ignore the plain and specific words that they used to get the outcome that you want.
You may think that winking at the Constitution’s plain language is “conservative,” but I do not. Re-writing constitutional language is rule by judicial decree, pure and simple.
As was Plessy.
My God, man. You are just shameless!
You didn’t think this through very carefully.
As I stated, there were entire classes of people who had their citizenship stripped from them in the aftermath of the war, as Andrew Johnson’s Amnesty Proclamation makes clear.
http://www.sewanee.edu/faculty/Willis/Civil_War/documents/AndrewJ.html
The intent of Johnson, (and the Radical Reconstructionists) was to punish those who were prominent figures in the Confederacy. Those people were also “persons”, and yet were stripped of their rights when they were stripped of their citizenship. In the case of Jefferson Davis, he was indeed denied due process, because the government never followed through with its threat to prosecute him for treason, despite his repeated requests that it do so. He died without his citizenship being restored to him, and it was not until 1978 when this was finally done posthumously.
I stand by my assertion. If Congress meant non-citizens to be covered as persons, then the acts that stripped many confederates of their citizenship rights would have been made null and void by the passage of the Amendment.
I stand by my assertion. If Congress meant non-citizens to be covered as persons, then the acts that stripped many confederates of their citizenship rights would have been made null and void by the passage of the Amendment.
That’s actually a good point.
Still, the Fourteenth Amendment uses the word “persons” instead of “citizens” – for some reason – and I don’t think we can dismiss that fact as casually as you wish to do.
I’m asking a question now: did the Confederates who were “stripped of their citizenship” no longer enjoy “equal protection under the law” in matters of taxation, or criminal justice, or other realms in which laws are intended to affect everyone equally? We all agree that being denied citizenship makes a person unable to vote or hold public office (likely the real intent of taking away Confederates’ citizenship). In what other ways were former Confederates’ rights limited by denial of citizenship?
In what other ways were former Confederates’ rights limited by denial of citizenship?
In the case of Jefferson Davis, he was denied his treason trial, despite the fact that he was held for two years after the war on treason charges, and despite the fact that he requested even after his release that the governent actually follow through with the prosecution. (the charges were never dropped, BTW)
You might also consider the internments of Japansese Americans, German and Italian Americans, and resident aliens of those extractions during WWI and WWII for the Eurpoeans and WWII for the Japanese. There was no due process involved in those cases. In the case of WWII specifically, there was a executive order, and they were packed up, and sent off.
Almost everyone agrees that internment of Japanese, German, and Italian Americans during WW II was an unconstitutional abuse of power. But that is beside the point of my question.
Yes, Jefferson Davis was denied due process. But wasn’t he included in the blanket pardon given to all Confederates in 1868?
Again, my question: After the blanket pardon, what were the practical consequences of loss of citizenship to Davis or Gen. Lee or to other Confederates?
As far as I can tell, loss of the right to vote and the right to hold public office (especially the latter) were the only consequences. Didn’t those non-citizen Confederates continue to enjoy “equal protection” as “persons under the jurisdiction” of states?
The stripping of Confederates of their citizenship is an excellent reason why the the use of the term “persons” may have been used deliberately in the “due process” clause rather than “citizens.” The intent seems to have been to keep former Confederates from holding office, but to pardon them and leave them intact in other ways.
But wasn’t he included in the blanket pardon given to all Confederates in 1868?
He was not. Nor was Robert E. Lee, who did not have his citizenship restored to him until 1975, three years prior to Davis having his citizenship restored.
Almost everyone agrees that internment of Japanese, German, and Italian Americans during WW II was an unconstitutional abuse of power. But that is beside the point of my question.
You didn’t read the entire answer, or you glossed over the inclusion of resident aliens…i.e. NON-CITIZENS in the executive order. No due process. No hearing, no trial. Just internment.
And to add to that, we didn’t just imprison those foreign nationals who were on our shores when hostilities broke out, we took them in from countries in Latin America, and held those PERSONS without due process as well.
http://www.gaic.info/latin_american_history.html
Excuse me, but the Confederates’ blanket pardon was NOT intended to restore their citizenship, and did NOT restore their citizenship. It only pardoned them for their secession-era “crimes.”
Am I wrong?
You are wrong. Lee and Davis were among those exempted from the pardon, as Lee himself acknowledged in his letter to Johnson of June 13, 1865:
“Being excluded from the provisions of amnesty & pardon contained in the proclamation of the 29th Ulto; I hereby apply for the benefits, & full restoration of all rights & privileges extended to those included in its terms. I graduated at the Mil. Academy at West Point in June 1829. Resigned from the U.S. Army April ’61. Was a General in the Confederate Army, & included in the surrender of the Army of N. Virginia 9 April ’65.[64]“ [emphasis mine]
Further, the vote in Congress in 1898 to to remove the limitations on holding office never applied to Lee or Davis. From the Wikipedia on Lee:
“On October 2, 1865, the same day that Lee was inaugurated as president of Washington College in Lexington, Virginia, he signed his Amnesty Oath, thereby complying fully with the provision of Johnson’s proclamation. Lee was not pardoned, nor was his citizenship restored. The fact that he had submitted an amnesty oath at all was soon lost to history.[64]
Apparently Secretary of State William H. Seward had given Lee’s application to a friend as a souvenir, and the State Department had pigeonholed the oath. More than a hundred years later, in 1970, an archivist at the National Archives discovered Lee’s Amnesty Oath among State Department records (reported in Prologue, Winter 1970).[64] For 110 years Lee remained without a country, as the Confederacy had dissolved and Lee’s United States application and oath were lost and disregarded.”
Clearly, Lee had complied with the terms of Johnson’s pardon, and had submitted the oath required…and yet he never had his citizenship restored. He was denied the due process he was explicitly due.
Graychin,
You’ve been quite inquisitive of my educational background and professional experience. I have provided that.
Would you be so kind to volunteer for us your educational background and business experience for a frame of reference?
Thanks in advance…
Somehow we have wandered off the main point and into a discussion of Davis and Lee, and of internment of certain ethnicities during WW II. Let’s get back to the case of Joe Confederate, just an ordinary guy.
As I understand things, Joe was stripped of his citizenship. That made him ineligible to vote or hold public office. Most of those men are non-citizens to this day, even in death. As far as I can tell, loss of citizenship carried no other tangible consequences for these men.
For some reason, the “due process” clause uses the word “persons” rather than “citizens.” If the 14th HAD used the word “citizens,” Joe Confederate would have been denied “equal protection under the laws, Joe no longer being a citizen.
My hypothesis: the word “persons” was chosen deliberately. As a result, the 14th Amendment required the States to grant to “any person (not necessarily a citizen) within its jurisdiction the equal protection of the laws.” That would include equal protection for non-citizens like Joe Confederate.
This is the point that I have been trying to make, admittedly not very clearly. Since you obviously have studied this matter in much more depth than I have, I would appreciate your views on my hypothesis.
(I already know that you think my hypothesis is wrong.
WHY is it wrong?)
If I may, here is another tangential point about my hypothesis:
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.
That is the very first sentence in the 14th Amendment. It was made necessary by the South’s “Black Codes” which denied many rights to the newly freed slaves.
(BIC, I’m sorry to be “playing the race card” again, but it’s impossible to talk about the 14th Amendment without referencing its context of specifying the status and rights of freed slaves.)
That first sentence is the basis for the “anchor baby” controversy in today’s debates about illegal immigration. Here is a very creative statement:
The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
http://www.theamericanresistance.com/issues/anchor_babies.html
That’s just more revisionist nonsense in the name of “originalism.” The words are plain, and we should either change them or follow them – not twist them to mean their opposite.
Tex, Graychin won’t answer the question because he’s ashamed of his background.
I don’t run this website, but if I did, Graychin, your spamming communist ass would be banned forever.
Dick,
Graychin is first and foremost a progressive. By definition, that means he will most likely exaggerate his background, riches and fame. We’ve all volunteered ours for Graychin, and I thought it fair he volunteer his “subject matter expertise.” I think he’s a little shell shocked because I have used his personal information to slap his ass before.
But in this particular case, I was simply curious.