The Federalist Blog

The American Civil Liberties Union again is suing under the twisted rational the Fourteenth Amendment somehow disables local government from displaying anything remotely religious in nature. The latest victim targeted by the ACLU is the rural Florida county of Dixie, which has a Ten Commandments monument at the steps of its courthouse.

The lawsuit says the monument violates the First and Fourteenth Amendments because it is not part of a historical display and because the uniquely Christian message of the Ten Commandments on a government building could intimidate people with different religious beliefs.

Well I’d say if anyone finds any community supported display in the United States of America “intimidating,” then they better cover their eyes and return to wherever it was they came from as quickly as possible. The Colonies did not fight a war for their independence independent and right to govern their own internal affairs as they deem fit, to later be bullied by either a national government clothed in limited authority or, groups using the courts as their fascist tool in suppressing the right of the people to govern themselves.

ACLU attorney Glenn Katon thinks, “Dixie County is, in effect, thumbing its nose at the Constitution by putting up this display.”

I will argue here that in fact it is the ACLU who is “thumbing its nose at the Constitution,” made possible by a very misguided United States Supreme Court that seems unable to separate facts from fiction. The result of this inability of the court to comprehend the language and history behind the amendment is that organizations, such as the ACLU, can terrorize municipal governments at will through fictional claims and arguments that can be said only be founded upon hogwash.

Under the language of the Establishment Clause the most significant question will always be: Has Congress enacted some law establishing a national church and then compelling by law for persons to worship this establishment, thereby infringing all persons “free exercise” of worship? If the answer is no, then there is no violation.

This question has not been changed with the adoption of the Fourteenth Amendment, and the States surrendered nothing to the national government in regards to rights retained under the original Constitution. Soon after its adoption of the Fourteenth Amendment, the framers established legislative precedent over its meaning and application, something the Supreme Court and the ACLU must ignore at all costs in order for their bogus incorporation theory to be remotely seen has having any semblance of validity.

If the Fourteenth Amendment made the Federal First Amendment a limitation against the power of the States in terms of the States own citizens, its primary author, John Bingham, shot down this idea in an House Report in January of 1871:

The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article. [41st Cong., 3d sess., H. Rept.22.]

It was always held by all that the original privileges or immunities under the fourth article never embraced any of the first Eight Amendments. Therefore, no luck in arguing the Federal First Amendment can be incorporated through the Fourteenth’s P&I’s. What about the Fourteenth’s due process clause? Nope, Bingham said that was simply an import of Chapter 39 of the Magna Charta.

After the civil war, the eleven states in rebellion were required to submit new Constitutions that conformed to the provisions of the Fourteenth Amendment in order to have their representation in Congress restored. Not one State Constitution that was found conforming to the Fourteenth Amendment contained anything remotely as disabling either the State legislature or, municipal government, from having anything to do with respecting religion.

In fact, the well-vetted Arkansas Constitution by the 40th Congress, as with most Constitutions, stated that, “Religion, morality, and knowledge” were essential to good government – not the lack of religion.

John A. Bingham said in a pre-Christmas speech in 1869, “to ever remove Christianity from the people’s laws would result in the collapse of morality, leaving evil to triumph over everything good and weak.” Not exactly the words one would expect from someone who allegedly disabled the people under their local governments from having anything to do with religion publicly.

Between 1871 and 1890 there were some seven attempts to amend the Constitution in prohibiting the States from respecting religion in one form or another. For example: In December of 1871, Sen. Stewart proposed a Sixteenth Amendment to the Constitution that would have directly prohibited the States in “giving aid to sectarian schools.”

In an 1875 State of the Union message, President Grant asked Congress to propose another amendment to the U.S. Constitution that would prohibit the States in “granting of any school funds or school taxes, or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination…”

It was this presidential recommendation that lead to a proposed Sixteenth Amendment that would had made the Establishment Clause of the First Amendment applicable to the States:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof, and no religious test shall be required as a qualification to any office or public trust under any State. No public property and no public revenue, nor any loan of credit by or under the authority of the United States or any State, Territory, district, or municipal corporation, shall be appropriated to or made or used for the support of any school, educational or other institution under the control of any religious or anti-religions sect, organization, or denomination, or wherein the particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit, and no snch appropriation or loan of credit shall be made to any religious or anti-religions sect, organization, or denomination, or to promote its interest or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair the rights of property already vested.

Such an amendment would not have been necessary if President Grant (the darling among radical republicans) and Congress understood the Fourteenth Amendment to have directly imposed upon the States and resident citizens therein the entire federal bill of rights.

It is one thing to desire neither federal or State legislatures to publicly support any one religious doctrine with tax dollars over another, but it is another matter entirely to disable local governments from recognizing religious teachings or traditions within individual communities. Not only would such an act mar the U.S. Constitution, it would destroy citizens’ privilege or immunity to collectively respect religious principles or traditions under the great doctrine of self-government.

There is no way in the world the Establishment Clause can be judicially made a limitation against municipal governments through the Fourteenth Amendment without one “thumbing their nose” at both the U.S. Constitution and the Declaration of Independence. Because of the framers own established legislative precedent, and the purpose for which the Fourteenth was adopted to serve, leaves the ACLU (and the U.S. Supreme Court) owing Dixie County an apology.

Related: Misunderstanding Jefferson’s ‘wall of separation’ metaphor

Q: Gil Cedillo, a California legislator has introduced a bill to authorize the issue of driver’s licenses not compliant with the federal Real ID Act. They are intended for illegal aliens.

My question is will other states be required to accept these as valid under the Full Faith and Credit clause, since they are meant to subvert the intent of federal law?

A: If Calif. issues only special temporary licenses to illegal aliens to operate on Calif. highways only, then no. If Calif. issues full fledge driver licenses contrary to the provisions of the Real ID Act, the answer would be no under Article IV, Sec. 2. Driver licenses are a privilege that only citizens are entitled to enjoy in another State as long as laws of the host State do not interfere.

Example, say under a new Texas statewide law that allows one to publicly eat in any restaurant naked – would not give you any rights to walk into any other restaurant in another State nude, and especially where there might be strict indecent exposure laws. Therefore, if a State passes a law that says only drivers with federally approved licenses may operate upon State highways, then California drivers beware.

I would like to add that I have real constitutional issues with the Real ID Act, but this can wait for another time.

The Supreme Court today announced that it would not consider an appeal over a Village of Port Chester, N.Y, in case involving all the hallmarks of extortion for money and property by a private developer and city.

The most shocking thing about this case is not the fact the US Supreme Court refused to intervene, but the fact local government has refused to protect property owners from shady city officials abusing their power over eminent domain. No one should ever be at risk losing property for the profit of third parties.

It’s difficult to make a Fourteenth Amendment issue out of Eminent Domain cases because its author, John Bingham, attempted to add the Fifth’s taking clause to the final version that is now part of the Constitution. It was also attempted early on to enforce the Fourteenth Amendment against counties and cities, only to be met with universal condemnation by those who had adopted the amendment, including John Bingham.

Because of this, it’s really up to local government to determine what constitutes “public works,” just as it was left to them to determine what constitutes unreasonable search and seizures – that is, until the federal judiciary took it upon themselves to become despotic. The security against such indefensible taking of property on behalf of third parties rests locally. If lawmakers refuse to protect property owners then they should be removed from office.

In reading the majorities opinion in Wong Kim Ark, one cannot help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous court decisions, a United States Attorney General Opinion over the meaning of the Fourteenth’s citizenship clause, and law previously made over alien citizenship via birth, leaves one to wonder what is going on here?

Deeper into the decision, Justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found under the Fourteenth Amendment, Jacob M. Howard and Lyman Trumbull. They are also attempting to keep their prior adjudication to what “subject to the jurisdiction thereof” means in Elk v. Wilkins out of the discussion or else Wong Kim Ark can’t be said to be a citizen of the United States.

It is clear the Wong Kim Ark majority recognized the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: “Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.”

Whatever credibility the court may had at the beginning was soon lost when Gray wrote:

The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment … as the equivalent of the words “within the limits and under the jurisdiction of the United States…”

Here the court is assuming what Congress may have intended while also arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court. Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”

Reviewing the intended purpose behind the words of the clause by both Sen. Howard and Sen. Trumbull, who were responsible for the drafting of the citizenship clause, clearly revealed the intended effect of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history of this language. Howard presents a major hurdle for the majority when he specifically declared the clause to be “virtue of natural law and national law,” never once making any reference to England’s common law doctrine. Perhaps this is why Gray wasted much of his commentary along common law themes.

An Act of April 9, 1866 established for the first time a national law that read, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” Rep. John A. Bingham, chief architect of the 14th Amendments first section, said this national law (Section 1992 of the US Revised Statutes) was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.

Sen. Trumbull, who was the author of this national law, said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.”

However, Gray insists Trumbull really meant to grant citizenship to everyone born due only to the fact they were born on American soil. Moreover, if everyone owed allegiance by simply being on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps the true answer is because locality itself was never enough to confer complete allegiance.

Speaking of the Fourteenth Amendment, Sen. Trumbull goes on to declare: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.“

Sen. Howard follows up by stating, “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

The Supreme Court had earlier discussed the meaning of the 14th amendment’s citizenship clause in the Slaughterhouse cases and noted, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power. The United States Attorney General (who was a Republican Senator involved in the adoption of the Fourteenth Amendment in 1866) in 1873 ruled the word “jurisdiction” under the Fourteenth Amendment to mean:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)

In Elk v. Wilkins, 112 U.S. 94, the court was specifically asked to address “subject to the jurisdiction thereof,” and held it meant:

The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

Here we have the framers, the Attorney General and the Elk court all agreeing that “subject to the jurisdiction thereof” means political attachment. The question begs, what happened to the adopted meaning?

In Wong Kim Ark the court made a weak attempt to marginalize its holding in Elk on the grounds that decision “concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”

In truth the adjudicated meaning of “subject to the jurisdiction” in Elk did in fact have the “tendency to deny citizenship to children” because it applied to all persons born whether Indian, Asian or any other race. The real question is which court was the question of “subject to the jurisdiction” part of the court’s holding?

The answer is, Elk. In Wong Kim Ark the definition of “subject to the jurisdiction” was not part of the holding but only passing dicta.

The definition for “subject to the jurisdiction thereof” handed down in Elk posed a real problem for Wong Kim Ark because Wong’s parents did not owe the United States direct and complete allegiance nor did they fall within the political jurisdiction. To try and sidestep the judicial meaning of “subject to the jurisdiction” found in Elk, Gray attempts to obfuscate the meaning of “subject to the jurisdiction thereof” using dicta:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State…

Unfortunately for Gray, he can’t unmake history nor can he hide from what he had ruled in Elk. Again, Kim Ark was not born into the allegiance of the United States, his parents had no political attachment, and his parents were subject to treaties in the same way that Indians were.

When all was said and done, the majority in Wong Kim Ark reveals their true nonsensical position: “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.“

That statement pretty much removes all doubt whether the Wong Kim Ark court had any idea what they were talking about.

The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to “include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first [born to American citizens].”

It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” This was needed to prevent rebel States from refusing to recognize former slaves (now citizens) as citizens of the United States under the Fourteenth’s first section (privileges and immunities).

Furthermore, these former slaves could be said to had no political attachment to any other country – meaning they did not owe “allegiance to anybody else.” To add additional insult, the court says: “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.

Gray asserts the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens…”

Couple of factual problems with this assertion. One, resident aliens were required to take an oath of allegiance to some State and declare intent to become citizens with all other aliens deemed transient where statutes in most states prohibited citizenship to their children born within the their limits including District of Columbia. Two, courts have always held change of location never makes any change to one’s allegiance. This fact prohibits the argument an alien being within the territory magically changes an aliens pre-existing allegiance.

So Gray’s assertions here are just plain false on their face.

The most significant truth to come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller himself when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.'” He was absolutely correct.

Only reason the language of the Fourteenth differs from the civil rights bill of 1866, which used the language “and not subject to any foreign power, excluding Indians not taxed” to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the Fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.

It is worth mentioning that it was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction of the United States. Obviously, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.

For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of personal allegiance to the King, no more survived the American Revolution than the same rule survived the French Revolution.“

There is also a disturbing ethical aspect of Wong Kim Ark in terms of the majorities’ apparent willingness to place themselves unethically above both facts and the supreme law of the land. The United States by treaty with China was prevented from admitting Chinese subjects to citizenship. This treaty was ratified by the same senators who had adopted both Section 1992 of the US Revised Statutes and the Fourteenth Amendment.

Furthermore, the court was also prohibited under 22 Stat. §14 to admit subjects of China to U.S. citizenship, “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.“

The Fuller court was no stranger to criticism or controversy when it came to interpreting law or the Constitution. For example, in the cases of Brooks vs. Codman, and Foote v. Women’s Board of Missions the question was who should get the money appropriated as indemnity for spoliations of William Gray’s (Justice Gray’s grandfather) ships? Codman was the administrator of William Gray’s estate and under a 1891 law payments could only go to “creditors, legatees, assignees or strangers to the blood.”

What did the court do? They did just as they had done in Wong Kim Ark; they simply said forget what the law says because we think payments should go to the “next of kin,” i.e., Justice Horace Gray.

Conclusion

The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of “subject to the jurisdiction” since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born born subject to its jurisdiction.

James Madison Jr., House of Representatives, February 1792:

I, sir, have always conceived–I believe those who proposed the Constitution conceived, and it is still more fully known, and more material to observe that those who ratified the Constitution conceived–that this is not an indefinite Government, deriving its power from the general terms prefixed to the specified powers, but a limited Government tied down to the specified powers which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine.

It will follow, in the first place, that if the terms be taken in the broad sense they maintain the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing; after giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to super add a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all.

I shall be reminded, perhaps, that according to the terms of the Constitution, the Judicial Power is to extend to certain cases only not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation as well such as fall under the Judiciary article in the Constitution, as these falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article.

There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, everything, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called if Congress pleased provisions for the general welfare.

Summary: The Fifteenth Amendments sole purpose was to remove “white” from former rebel State statutes so black citizens could have equal footing as whites in voter qualification laws. This had no effect on stringent State voter laws that could easily disqualify most blacks on conditions other than race because there was no likelihood such an amendment would be ratified by more than 3 States.

Today when one speaks of the Fifteenth Amendment they usually do under the belief the Amendment provides an outright constitutional mandate granting citizens the right to vote. The Fifteenth Amendment is not a constitutional right to vote. This is because the right of suffrage was left with the independent States to grant or withhold and where the jurisdiction over such matters was left.

Pro-abolitionists were hoping to amend the Constitution with a strong universal right to suffrage, however, the Joint Committee on Reconstruction concluded there was little chance of universal manhood suffrage to ever be adopted by a majority of the Northern States because it would take away the power of regulating who can vote. Instead, pro-abolitionists settled on the goal to simply remove the word “white” from State laws (16 States required by law or constitution for voters to be white), leaving the power in determining who shall be voters with the individual States.

The court in United States vs. Reese provided the finest explanation of the Amendment that could ever be written:

The Fifteenth Amendment does not confer the right of suffrage upon anyone. It prevents the States or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, etc. Before its adoption, this could be done. … Now it cannot. If citizens of one race having certain qualifications are permitted to vote, those of another having the same qualifications must be. … It follows that the Amendment has invested the citizen of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.

History

When Rep. Boutwell of Massachusetts presented his proposed draft of the Fifteenth Amendment before the Reconstruction Committee of the 40th Congress, it included the words “nativity and religious belief.” This language set off alarm bells because undesirable immigration was sweeping the Nation and States (specifically the Pacific States) did not want to surrender their right to exclude suffrage to foreigners.

Rep. Thomas Fitch (NV) approached Boutwell and suggested to him that if the words “nativity and religious belief” were not removed from the proposed Fifteenth Amendment that Nevada might not be able to ratify the amendment. Fitch argued that if the words “nativity and religious belief” became part of the US Constitution Pacific states would be prevented from excluding Chinese from the right to suffrage. The committee being concerned with the potential troubles of ratification even with southern States coerced to ratify, eventually removed such language.

A potential hurdle against adoption of the Fifteenth Amendment centered around concern of every State that such an amendment might act to nullify all their voter qualification laws and policies. An example of this occurred on February 15, 1871 between John Bingham and Rep. Samuel S. Cox (NY) over the limitations of Congress’ power to intervene in State registration policies:

Cox: I would like to ask my friend [Bingham], when he seeks to make uniformity as to suffrage in this country, what sort of provision he would make for Rhode Island, for instance, where there is a real estate qualification of $134 over and above all encumbrances; or with reference to Massachusetts, where the ability to read and write is a qualification?

Rep. John Bingham of Ohio, responded: “[T]he qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness,” and the “State prescribes the qualifications of the electors, subject to the limitation of the Constitution.”

Speakers in favor of the amendment stressed there was nothing prohibiting a State, such as Rhode Island or Massachusetts, from enforcing their voting qualifications as long as they did not single out any one class of citizens because of race. Sen. Jacob Howard, member of the Committee of Reconstruction, pointed out the weakness of the amendment this way:

So far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars’ worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars’ worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil. …

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects. (Cong. Globe, Vol. 42, pg. 600)

On February 17, 1870, Sen. Lyman Trumbull, Chairman of the Senate Judiciary, described the limitations of the 15th Amendment this way:

[A]ny State may require a property qualification, may require an educational test, may impose such conditions upon voting as it thinks proper, so they are uniform on all classes of citizens. That power has not been taken away from the States. The only power that has been taken away from them is the authority to discriminate on account of race, color, or previous condition.

On January 30, 1871, the House Judiciary Committee, lead by John Bingham, released H.R. No. 22 on the interpretation of the Fifteenth Amendment that established legislative precedent:

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein “on account of race, color, or previous condition of servitude.” The adoption of the Fifteenth Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein.

The limitations specified in the Fifteenth Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law, which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude. [Source: House of Representatives, Committee on the Judiciary, Victoria C. Woodhull. H.R Report. 22, 41st Cong., 3d sess., January 30, 1871]

Two principles were clearly laid in Karem vs. United States: (1) the Amendment relates solely to state action, and (2) solely to discrimination on account of race, etc. It follows from these principles that appropriate legislation for enforcing the Amendment must be directed to state action in some form, by which otherwise qualified voters are denied the elective franchise on account of race, etc.

No agencies except the States are capable of denying the right to vote because they alone have the power to confer it. Private individuals can interfere with the enjoyment or exercise of the right to vote, but are impotent to take away the right itself. The right to suffrage still belongs with the States and not the federal government, and the States can elect to withhold the right to anyone, for say crime, property ownership or length of legal residency without regard to voters color, ability to pay a tax to receive a ballot, or gender.

Pima County Attorney Barbara LaWall on behalf of herself and several other county attorneys and sheriffs, recently said a Arizona proposed immigration provision is an unconstitutional intrusion by the state into immigration policies, which are solely the purview of the Federal Government.

This struck me kind of odd because in order to come under the purview of the Federal Government the authority must be found delegated or, incidental to a delegated power granted to Congress under the US Constitution. There is a significant reason why Congress has no delegated power leading to jurisdiction under the US Constitution in matters of immigration or Asylum.

Prior to the adoption of the current Constitution, which was intended to correct for deficiencies found in the Confederation (hint: “to form a more perfect union”), States decided for themselves who could reside and later become citizens within their limits. This was simply a function of sovereignty each State enjoyed and had no desire to surrender to national government.

During the Constitutional Convention of June 16, 1788, George Mason asked if the new Constitution would secure and guarantee the rights the States then currently enjoyed. Said Mason:

But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction. Many gentlemen, whom I respect, take different sides of this question. We wish this Amendment to be introduced, to remove our apprehensions. There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States.

This clause has never been complained of, but approved by all. Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration that every thing not given is retained, it will be carried to any power Congress may please.

It was this very apprehension that we find the Ninth and Tenth Amendment under the US Constitution today. The Ninth and Tenth Amendments taken together provide for interpreting the Constitution while also defining the sovereignty of the republic.

The Ninth was intended to preserve all rights under existing state laws as of 1791, and those rights, which States might later decide to extend. The Tenth guaranteed to the States their ability to exercise their powers based on the sovereignty of the people to self-government. The Ninth Amendment looks to the past, the rights retained, or that will be retained by the States. The Tenth Amendment acts to prevent encroachment by the national government upon the States via the exercise of a non-delegated power.

Thomas Jefferson forcibly tells us what the States retained under the US Constitution in regards to immigration:

[A]lien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved, to the states, respectively, or to the people,” the act of the Congress of the United States, passed the 22d day of June, 1798, entitled “An Act concerning Aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

Because the States decided they would retain their own laws, customs, independence and sovereignty with the exception of what was surrendered, the Federal Government was left with no powers to meddle within the States. The Vermont Constitution of 1793 recognized citizens right to emigrate from state to state, provided the laws of the state accepted them. James Madison explained the entire compact this way:

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Chief Justice of the United States, John Marshall, said, in delivering the unanimous opinion of his brethren of the court in McCulloch v. Maryland, decided in 1819:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into into one common mass. Of consequence, when they act, they act in their States. … In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

Sovereignty over individual State immigration was never an object committed to national government.

Unlike the Federal Government, State governments claim broad general powers, and therefore, the question is never whether a power is granted for a State to exercise, but whether the power has been explicitly withheld from the State. The Federal Government was given specific national sovereignty over such things as war, peace, treaties (within the sphere of powers delegated), print money, define and punish piracies and felonies on the high Seas, make uniform rules of naturalization for foreigners who migrated to some State per State law, etc.

Because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congress no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.

It was always up to each State to monitor their own borders or protect its citizens from the wild Indians internally, and if things got out of hand, they could make application for federal troops to enter to combat any internal domestic violence. If one closely reads the U.S. Constitution, they will discover domestic concerns of the States were carefully shielded from federal interference.

The same Congress that had passed reconstruction acts after the civil war, including the 14th amendment, required rebel State Constitutions to conform to the US Constitution before being re-admitted into the Union. Texas, like other States, had elected to form its own immigration bureau for managing immigration within State limits. Article XI of the pre-approved Texas Constitution of 1869 read:

SECTION I. There shall be a Bureau, known as the “Bureau of Immigration,” which shall have supervision and control of all matters connected with immigration. The head of this Bureau shall be styled the “Superintendent of Immigration.” He shall be appointed by the Governor, by and with the advice and consent of the Senate. He shall hold his office for four years, and until otherwise fixed by law, shall receive an annual compensation of two thousand dollars. He shall have such further powers and duties, connected with immigration, as may be given by law.

Most all the States had their own “immigration commissioners” in a number of European countries before and after the adoption of the Fourteenth Amendment, seeking to encourage those persons who possessed certain needed skills to immigrate to their State. When immigration of any kind became unwise the State had the full power to act on the subject (unlike today).

For example, the commissioner of the Wisconsin Labor Bureau discovered in 1886 after making inquires throughout the State that there was an overwhelming resentment against immigrants entering the state labor market. A year later, a bill was passed in both houses without a single dissenting vote to abolish the State Board of Immigration to end encouragement of immigration into the State.

Under our system of government, immigration by design works something like this: States decide who they desire to immigrate into the State, how many and under what terms and inducements. States could issue letters, travel visas or whatever to the immigrant to lawfully enter and pass through other States on his journey to the State who sought him.

This was the proper method; however, steamship companies learned they they could profit from European countries paying them to export their most undesirable citizens into this country. If ports of entries would pass laws to guard against this mass importation the companies would sue, claiming the State was interfering with national governments commerce.

State ports of entry can lawfully deny entry to anyone who is not authorized by any State to accept them. States have always protected themselves from the beginning against vagabonds and pauperism (public charge). The Constitution of Vermont of 1793 recognized “[t]hat all people have a natural and inherent right to emigrate from one state to another,” provided a State was willing to “receive them.”

Congress could attempt to pull some implied authority over the migration of people within the jurisdiction of a State through the Necessary and Proper Clause, but this would require finding a delegated power that can breach the sovereignty of the State to do so. The power to make uniform rules of Naturalization will be of little use for a number of reasons. The principle reason is that it is simply a power to make rules for giving or withholding citizenship to an alien already residing within a State under the lawful requirements of the State.

Consider for a moment that the power to make uniform laws over bankruptcy under any liberal interpretation provided no power for Congress to create bankruptcies within States.

Liberal construction of the Naturalization Clause is made difficult because it was introduced to the constitutional convention to specifically give the Federal Government the “exclusive right of declaring on what terms the privileges of citizenship & naturalization should be extended to foreigners.” Clearly then, it was never a power given over anything remotely dealing with the authorization of entry into the States but only deals with the citizenship aspect once they decide to seek citizenship after the migration to a State under the laws of the State, of course.

The Federal Government or the courts could claim immigration is an “incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it….”

The problem with this line of reasoning is that the U.S. Constitution by design greatly limited the sovereignty of the Federal Government, leaving the government to exercise well-defined sovereignty, while the rest was left to the States to exercise. Additionally, if the Constitution had left it up to the courts or government to say what might constitute an “incident of sovereignty” affecting the internal order of a State, then there would have been no purpose in providing for the making of uniform rules of naturalization. Congress could merely say naturalization (or even bankruptcy laws) were an incident of its sovereignty.

Madison had made it clear national sovereignty was limited and did not extend to within the States:

[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority is subject to them within its own sphere. In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all objects.

Madison writing in the Virginia Resolutions, said, “there are powers exercised by most other governments, which, in the United States, are withheld by the people both from the general government and from the state governments.”

The U.S. Constitution granted the Federal Government sovereign power to make war, maintain armies, mint money, levy duties on imports, receive Ambassadors and other public Ministers, establish post offices, make treaties, etc. Nothing can be found that authorizes the Federal Government to exercise sovereignty over foreigners within a State as the original 13 colonies did not intend to leave the Federal Government with a blank check when it came to defining sovereignty.

Today the court uses its “plenary power” doctrine in order to avoid having to address how it is possible the States surrendered to the federal government exclusive authority over aliens coming and residing within State limits.

The Supreme Court has held at different times that if Uncle Sam desires to oust some State law, then the burden is on them to show the express authority to make the law under the Constitution, and where it had been expressly prohibited to the States to touch. Good luck finding any granted power over aliens within State limits while also finding where the States are forbidden to have any say in the matter. For Congress, or the courts to make some law that has no foundation in some enumerated object and call it a supreme law is nothing but usurpation, and deserves to be treated as such said Alexander Hamilton.

Chief Justice Marshall in McCulloch v. Maryland tells us Congress may only exercise powers conferred by the letter and spirit of the Constitution that cannot be transcended:

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

No doubt Marshall was laying down the same constitutional analysis as Hamilton had in regards to Congress exercising powers under the Constitution: “Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality….”

What might be an existing right belonging to a State? Anything that is neither delegated to Congress or prohibited to the States to touch. One will find nothing remotely implying the States surrendered their absolute power over determining who may enter and reside within their jurisdictions who were not citizens of the United States.

This is why Rep. John Bingham held during reconstruction that States conditionally had the absolute right to admit or expel anyone from their limits. The condition he argued, was States cannot deny entry of citizens of the United States no matter what color of their skin, but if alien, the States could under their Constitution forbid their entry or right to acquire property in the State. Likewise, he argued a State could not expel its own citizens without having committed some crime that called for the expulsion from the State.

Could Congress use its treaty making power to force States to submit to accepting other nation’s citizens? Chief Justice Taney in the Passenger Cases said it was not open to dispute that the federal government had no such authority under the Constitution to force States to suffer from the introduction of foreigners from other countries via its treaty making power, nor would the States be bound to submit to such an unlawful act of Congress:

The first inquiry is, whether, under the Constitution of the United States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it.

For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize or enforce.

I had supposed this question not now open to dispute. It was distinctly decided in Holmes v. Jennison, 14 Pet 540; Groves v. Slaughter, 15 Pet 449, and in Prigg v. The Commonwealth of Pennsylvania, 16 Pet 539. These cases decide that the States have the power to expel and exclude. There can be no concurrent power respecting such a subject matter.

The court has claimed immigration actually involves “foreign affairs” but never been able to explain how alien residency within State limits has anything to do with “foreign affairs” since it that is predominately a State affair affecting the State directly within its own jurisdiction.

Congress has no option of resorting to the already comically abused commerce clause in exercising any authority over aliens within the States as evidenced by the courts shift over the years in claiming national sovereignty gives them authority.

Early cases involving the landing of immigrants dealt with various tax schemes against ship owners or immigrants themselves, were ultimately ruled an unconstitutional intrusion with the regulation of foreign commerce. The logic the court used in these decisions was frail and weak, and consequently the rulings were wholly void of facts to support the majority opinion.

The reason the regulation of foreign commerce was inserted in the Constitution was to enable Congress to protect its primary source of revenue (imports) by denying to the States the power of imposing their own tariffs on foreign imports. On the other hand, the regulation of commerce between the States served no purpose on behalf of Congress but only served to protect the States against each other (one State imposing tariffs on another State to give the infringing States own commerce an advantage price wise.)

Under Article 1, section 9 we find these words: “The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations not exceeding ten dollars for each person.”

Why was this inserted into the Constitution if immigration was, in the words of the court, an incident to the “sovereign powers delegated by the constitution”? It was inserted because there was no sovereignty invested in Congress over the voluntary or involuntary migration of slaves, and also, it was doubtful whether Congress could impose a tax to prevent such importation as it wouldn’t be an impost.

It was never disputed the clause only acted as a limitation and not as a recognition of a broad hidden power.

There was noting the court could find in the Constitution to justify their ruling that a State imposed tax on immigrants or the ships carrying them had anything remotely to do with the regulation of commerce. And the court would had been just as foolish to argue such a tax was a tax on imports or tonnage when Congress never before attempted to impose a tax penalty on people entering a State from anywhere. Only States did such a thing since the authority was exclusively retained by them to do so.

What is significant with this commerce discussion is that current judicial thinking in regards to federal immigration powers is substantially founded under commerce clause rulings.

Consequently, early waves of immigrants into this country were not the result of any acts of Congress or any State, but acts of the United States Supreme Court in denying the States the right to penalize the commercial importation of immigrants by commercial passenger companies for profit.

As one might suspect, Congress has no constitutional authority to issue green cards to immigrants either. The States are the only authoritative entities that can issue green cards and offer residency within their limits. In a sense, there really is no such thing as a “legal immigrant” as a result of acts of Congress because Congress has no legal basis to make anyone a legal resident within the States – only the States do. Some might be alarmed to think the Federal Government could have no control over who enters or resides within a State, but really if our Constitution upheld and the principles of our republican form of government is followed, current problems associated with absorbing millions of immigrants would be limited.

Consider for a moment if California decided she wanted to have an open border policy, encourage and welcome millions of immigrants from Latin America to immigrate. California could then issue resident cards, make rules and regulations governing its foreign population, and most importantly, be stuck with all the costs because the Federal Government really would have no authority to raise and spend tax dollars to support California’s foreign population (another non-delegated power). Wouldn’t take long for Californians to begin questioning whether an open border is a good thing.

Consider also California would have no way of relieving itself of its own internal generated burden because other States could constitutionally refuse non-citizens from residing within their limits, making it harder for California’s self-inflicted woes to migrate to other States. California would then be forced to withdraw the privilege of residency to foreign immigrants within the State – forcing the State to enact responsible laws governing foreign residency.

Congress then could apply checks upon California through naturalization rules, such as limiting the number of citizens to be naturalized and other conditions. Our form of government really would work well for us if Congress and the courts would let it work as intended under the great compact that established our republican form of government.

What is really lacking for Congress is an exclusive authority to “exercise exclusive legislation” within the States that could open an avenue in exercising powers over the migration of people and residency within the States. Unfortunately for the Federal Government, our Constitution only provided this authority over the District of Columbia, federally owned land and no where else.

Many confuse early American immigration legislation as a sign Congress had always exercised absolute jurisdiction over the subject. This is plainly false because early legislation dealt with encouragement of immigration into the large territories that were not yet formed into statehoods with their own laws, courts and constitutions. In other words, Congress had complete monopoly over the territories under its jurisdiction.

During the nineteenth century Congress never attempted to legislate over immigration matters within the States because they recognized the Constitution gave them no power over forcing foreign migration into each of the State jurisdictions. Once the territories were carved up into States the Federal Governments control over immigration into the country decreased proportionately.

President Andrew Jackson said the “Constitution, which was established for the benefit of our own, not of a foreign people: if in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control.”

President Grant was sympathetic to the treatment of immigrants once they reached the shores of this country, but told the House in a memo that national legislation over the subject would be unwise because the Federal Government was prohibited from interfering with immigration matters within the limits of the States. Said Grant: “[R]esponsibility over immigration can only belong with the States since this is where the Constitution kept the power.”

Framer of the Fourteenth Amendment and Chairman of the House Judiciary Committee, Rep. John Bingham, reminded committee members that Congress were “limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits.” He further emphasized the States immigration powers could be exercised without any “question or limits placed on [the] reserved power from the central government.”

This all leads to several big questions for the U.S. Supreme Court: When did the States surrender their power over immigration to the Federal Government? Where can this surrender be found documented in the US Constitution? The judiciary is neither a legislative body nor does it have the authority to transfer sovereignty from one political body to another without either’s consent.

The great Chief Justice John Marshall reminds us the “Constitution of the United States is one of limited and expressly delegated powers which can only be exercised as granted, or in cases enumerated.” For Congress, there is no expressed or implied grant of power over the admission of immigrants to enter and take up residency within any State limits – no more than there is a power to instruct Tokyo to absorb one million refugees. As Jefferson would say of today’s laws over immigration, “is not law, but is altogether void and of no force.”

See also: Feds Argue Pre-Eminent Authority over Immigration

This is an interesting recurring question I get every once in a while and, unfortunately, been too occupied to answer. There has been talk to change “persons” under section 2 of the 14th amendment to read “citizens.” Michigan Republican Rep. Candice Miller introduced a constitutional amendment last year that would change the 14th amendment to allow only “citizens” to be counted instead of “persons.” The section in question reads as follows:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Strictly speaking, there is nothing terribly wrong with this section of the fourteenth amendment as it stands because the States lost nothing outright due to its adoption. It is important to note that no State can be held liable for disenfranchising anyone who is not a citizen of the United States. The insertion of the word “persons” obviously confuses the entire section leading to the assumption aliens who have not renounced all prior allegiances to their country of origin or sworn fidelity to this one under the laws of naturalization are required to be counted.

Here is a little history of this section that hopefully will make it less confusing.

In January of 1866, the Committee on Reconstruction put foreword a special order (H. Res. 51) to amend the US Constitution with the following instructions by William Lawrence:

“Apportion representation among the States on the basis of adult male voters who may be citizens of the United States.”

When the proposed Amendment reached the US Senate on March 9, it had had been drafted to read in part: “Representatives shall be apportioned among the several States within the Union according to the number of male citizens in each of twenty-one years of age and upward…”

In the House, Rep. John A. Bingham had objections to the use of the word “citizens” because he felt those aliens who resided in the States, who had renounced their allegiance to their country of origin and had sworn fidelity and allegiance to this one, ought to be counted for purposes of representation. Over in the Senate it was indeed foreseen by some that by changing “citizens” to “persons” could lead to non-qualified aliens to be enumerated for purpose of representation. Sen. Johnson resolved the conflict by pointing out that the alien population will simply be deducted:

[There] is a large number of them [aliens], and they will be deducted from the enumeration which is to ascertain the proportion of representation; unless it be in the power of the State to make them citizens.

[…]

And I know no mode by which an alien can become a citizen of the United States except under the naturalization laws of the United States. If he cannot be made a citizen in any other way than under those laws, the operation of the amendment would be to exclude from the enumeration all who may not be citizens.

Sen. Trumbull (Chairman of the Judiciary) was pretty much in agreement with Sen. Johnson’s argument put forward above, and so the rest of the Senate fell in line. So to sum this up, “persons” was used for purposes of including aliens who had declared their intent to become citizens of the United States and who were awaiting for the required length of residency required to become bona-fide citizens themselves.

It indeed defies logic why millions of non-citizens who violated federal laws to reside in the country illegally could be counted for purposes of State apportionment of representatives. At the same time, it also defies logic how anyone will ever be able to determine exactly how many illegals should be deducted from the census count because most everyone would agree the actual numbers of illegals residing in the country is vastly underestimated (use of fraudulent ID makes obtaining a accurate count more problematic).

There is no denying the practice of enumerating aliens for purposes apportionment runs counter against the entire principle of a nation founded strictly for ourselves and descendants, which of course was exactly the objective of this section of the amendment: To count the whole number of “ourselves” and those who had taken the legal steps to become citizens by renouncing all prior allegiances as required by law at the time upon application.