The problem for the Trump administration is that there were legal equivalents of undocumented immigrants living in the United States at the time the 14th Amendment was written and ratified: those black Americans, free and independent, who were imported into the United States illegally. States after 1808, when legislation prohibiting American participation in the transatlantic slave trade was enacted. As Gabriel J. Chen and Paul Finkelman observe. 2021 Essay For the UC Davis Law Review, federal and state governments have used modern-day immigration enforcement tools — sanctions, deportations and restrictions on internal migration — in an effort to combat the problem. Congress could have excluded these unauthorized residents and their children from the 14th Amendment. They didn’t.
More surprising is the fact that the Republican Party that led to the 14th Amendment contained a large number of former Know-Nothings—members of the Nationalist American Party who opposed Catholic and Chinese immigration to the United States. were It is hard to believe that the authors of the 14th Amendment were unaware of these attitudes or were blind to the possibility that they would grant citizenship to children who were victims of nationalist hatred.
Indeed, when asked whether the provision would “have the effect of naturalizing the children of Chinese and gipsies born in this country,” Senator Lyman Trumbull, who included birthright citizenship in the Civil Rights Act of 1866, said: Helped to develop the language. The amendment was written to be preserved and confirmed – answered, “Of course.” Senator John Kunis of California stated clearly that he was “willing to accept the provision proposed in this constitutional amendment, that children born here of Mongolian parents shall have civil rights and equal protection under the United States Constitution.” shall be entitled to.with others before the law.
Another option the administration could take, if it hasn’t already, is to say that undocumented immigrants are attacked “during a hostile occupation of a portion of our territory and by hostile forces,” as in that according to the language of the Court in Wong Kim Arch. But this is also a new understanding that is belied by the historical record. Among other places, in Article I, Section 8, and Article IV, Section 4, the word “attack” appears as part of the militia clause and the guarantee clause.
In using the term, the framers and ratifiers of the Constitution were almost certainly leaning on the definition offered by the English author and lexicographer, Samuel Johnson, who defined “assault” as “an attack on another’s rights or “Adverse entry on property”. A “hostile trespass”. This puts pressure on illegal border crossings – by largely peaceful migrants – to be defined as anything hostile or aggressive. Even the conservative Texas Public Policy Foundation, In the 2022 report On the meaning of “attack” in the Constitution, it concluded that “the illegal entry of persons into the United States cannot be considered an attack. Nor, for that reason, should the possibility of further illegal entry be considered as such in the foreseeable future.” can go.”
