Friday, June 11, 2010

Will Arizona Try to Bring Back Dred Scott?

Arizona Republicans might introduce a bill this fall that would deny birth certificates to children born in the United States, but whose parents are not lawfully present in the country. Presumably, the purpose of the law is to make it difficult or impossible for these children to establish their citizenship.

The Fourteenth Amendment provides that "all persons, born. . .in the United States, and subject to the jurisdiction thereof, are citizens of the United States" (italics added). This is known as "birthright citizenship." Some Republicans have sought ways to eliminate birthright citizenship, including by constitutional amendment.

This constitutional provision reverses the infamous Supreme Court decision in Dred Scott v. Sanford, which held that blacks -- whether slave or free -- were not citizens of the United States and therefore were not entitled to assert rights in US courts. Apparently, some lawmakers in Arizona want to bring back a portion of the law stated in Dred Scott.

I suspect that most of the conservatives on the Court would rule that this law violates the Equal Protection Clause. Although the Constitution is ambiguous in most places, this language is pretty clear. Furthermore, while the Constitution does not mandate that states issue birth certificates, it does not allow states to treat citizens as if they were aliens.


Chris Martinez said...

I recently spoke with a couple Arizonans whom I had regarded (perhaps erroneously) as left-of-center, and I was blown away by their perspectives on immigration issues. They both stridently defended the "show me your papers" law recently signed by Jan Brewer, and absolutely could not see the issue from the perspective of a person wrongly harassed for "looking illegal." Also, despite actual statistics clearly showing the opposite, they were absolutely convinced that there is a skyrocketing crime wave caused by the swarthy, invading horde, and that extreme measures are necessary to alleviate it.

It's really something over there. Many otherwise progressive folks are nevertheless to the right of Rush Limbaugh on immigration matters, and it ain't pretty. One thing is for sure, there are mountains of political hay to be made in state and regional politics demonizing people with Mexican heritage.

Anonymous said...


ZombieHero said...

It was my understanding that the US vs Wong Kim is what set the birth by citizenship standard (jus soli) along with Pyler v Doe.

So you never know, they might be gunning for a SCOTUS fight. I think it's dumb since not even Scalia has the balls to overturn precedent (his recent comments on privileges and immunities clause during the Chicago orals).

It interesting to note that in our current drive to more European like laws, a lot of EU countries are getting rid of Jus Soli laws outright. Something to think about.

But your not doing yourself any good by throwing out Dred Scott ad hominems like that.

Hippi Chicki Niki said...

I've become convinced that something about all of that searing heat and the low availability of water prevents the brain cells that allow one to use common sense, logic and reason from functioning properly. Now, AZ has definitely taken over the title as the most racist state in the union. Sadly, my mom's homestate, AL, now has to hand over the crown.

ZombieHero said...

Hippi Chicki - If you think laws like that make the whole state racist, a nice over generalization by the way (very tolerant). Then do you think most of Europe is racist as well, since they have laws just like the one AZ passed. In fact a lot of European countries (as well as African, South American, Asian) have stricter laws than what AZ passed.
If you're gonna throw out the R word at least be consistent in it's usage.

What do you say Prof? Am I right in my characterization of European laws?

Hippi Chicki Niki said...


Of course it was an over-generalization. They tend to often be present in jokes. That is part of what makes them funny.

I sincerely hope that you are a 1L in his Con Law class and Prof. Hutchinson is responsible for giving you a grade. Otherwise...

ZombieHero said...

"Of course it was an over-generalization."

Of course your going to say that after you've been called out.

Otherwise what? I'm a big boy, I can take whatever you can dish.

Anonymous said...

Although it is indeed likely that the Supreme Court would deem this proposal to be unconstitutional, if passed by Arizona and signed by the Gov. into law, I'm concerned that the real push behind the effort here is to stir a broader national anti-immigrant movement. With Republicans likely to make major gains in state legislatures as well as Congress, I wouldn't be too surprised to see more of a national push to change the 14th Amendment next year. (Not that it would immediately be successful.) Of course, other factors, such as the passage of a compromise immigration reform bill in 2011, just might take the sails out of this effort.

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