Interpreting the 14th Amendment - by Judge Jim Gray

Why are Arizona and an increasingly large number of other states taking their own action regarding illegal immigration? It results from the frustration of the federal government's inactivity. As was discussed in this column from July 22, 2007, Congress could resolve this problem fairly easily and quickly if it wanted to, but the reality is that it has no such desire.

Why? Because many powerful Republicans want continued access to cheap labor, and many powerful Democrats want people to continue to come here illegally with the hope that eventually they will vote for Democrats. In the meantime, countless numbers of good people are being seriously injured.

Thus, I never get mad at illegal immigrants. They are simply doing what the system so strongly encourages them to do, which is to pursue a better life for themselves and their children. Of course, this is why our ancestors came here as well!

Besides, it is often dangerous and expensive now to come into this country illegally, so there is a strong self-selection process that usually excludes all but the most hearty and dedicated. So mostly I admire them.

The solution is a simple three-step process.

First, we decide how many people we need to enter our country to perform different types of labor and how long they should stay.

Second, we issue counterfeit-proof identification cards, probably based upon fingerprints or cornea images to people from other countries who legally apply for those positions.

Third, anyone who employs workers who do not have a passport or this card would be prosecuted.

The cards would allow people to come into our country and work for a prescribed period of time, and then require them to leave. The migrant workers would have reduced benefits and tax obligations while they were here, and probably could not bring their families.

But within the specified time they could cross the border without a problem, and could have driver's licenses and access to our courts because they would be here legally. Of course, people who did not have this card would increasingly find it difficult to secure or maintain a job, so they would soon be inclined to go elsewhere.

Our present, untenable situation is also being allowed to continue because, although it has all the power, the federal government doesn't have to pay for the costs of illegal immigration. Thus, it has no particular incentive to do anything about it.

Instead, most of the costs are paid by state and local governments, and the school systems. So the incentives to resolve the problems will only be present when the federal government is required to pay for things such as the health care, education and incarceration of illegal immigrants.

Arizona is attempting to enforce the federal immigration laws. Not only is there nothing wrong with that, Arizona should be applauded for doing so! Furthermore, if the federal government does not agree with Arizona's actions, it has the absolute ability to stop them cold.

How? Simply change the federal law.

And then there is the question about whether the 14th Amendment should confer automatic citizenship upon all babies born within our borders. The applicable language cited for that result is: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States … "

Up until now, this provision has been interpreted to stand for automatic citizenship. But the interpretation should be re-examined.

As you will recall from your history classes, the 14th Amendment was passed in July 1868 after the Civil War, and intended to confer citizenship upon former slaves. But the framers of the amendment simply could not stop with the words "all persons," because when the Constitution was ratified, slaves were officially recognized only to be 3/5 of a person. Thus, additional language was needed to address those people.

Nevertheless, if the framers were here today and asked whether that amendment would confer automatic citizenship upon a baby who, for example, was on an airplane flying from Mexico City to Toronto, but was born while the plane was refueling in St. Louis, they would give you a four-word response, which would be: "What, are you crazy?" And they would also give you the same answer if asked about children born in our country to parents who were here illegally.

Then, after pondering the situation a bit further, the framers would say: "Wait a minute, we already addressed these issues in the amendment itself by inserting the clause 'subject to the jurisdiction thereof.' If we had meant literally anyone born here would become a citizen, we would have left that clause out!"

And that is the answer. If a citizen of Japan is arrested here while on vacation, he doesn't call our embassy; he calls the Japanese embassy because he is still subject to the jurisdiction of Japan even though his physical presence is here. Thus the 14th Amendment does not need to be amended, just correctly interpreted.

Re-interpretation is certainly not something to be done lightly, but it has happened before. For example, in Brown v. Board of Education in 1954, the U.S. Supreme Court reversed the 1896 precedent of Plessy v. Ferguson by holding that "separate but equal" public schools were not equal and were therefore unconstitutional. In a similar fashion the Supreme Court should re-examine the 14th Amendment.

Finally, only after we regain control of our borders by implementing this new program and interpretation should we address the truly emotional issues of "amnesty." There truly are some special equitable considerations that must be taken into account for people who have been in this country for so long that they really have no other country to which to return. So special allowances should be made for those people.

But first things first.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at jimpgray@sbcglobal.net or http://www.judgejimgray.com. Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.