Horizon, Host: Ted Simons

October 27, 2010


Host: Ted Simons

14th Amendment

  |   Video
  • A state lawmaker would like to see the end of automatic citizenship for virtually everyone born in the United States, as granted by the 14th amendment. Arizona State University Law Professor Andy Hessick talks about the 14th amendment and the possibility of changing it.
Guests:
  • Andy Hessick - ASU Law Professor
Category: Immigration

View Transcript
Ted Simons:
The 14th amendment of the u.s. constitution gives citizenship to almost anyone born in the United States, regardless of the legal status of the parents. But there is a move to eliminate this automatic citizenship, led by state senator Russell Pearce, who recently announced plans to introduce legislation to address the issue. Here to talk about the 14th amendment is Andy Hessick, a law professor at Arizona State University.

Ted Simons:
Thanks for joining us. What does the 14th amendment say?

Andy Hessick:
It says that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state in which they reside.

Ted Simons:
Ok, seems clear. When was it added to the constitution?

Andy Hessick:
1868, I think.

Ted Simons:
The reason it was ratified?

Andy Hessick:
It was added to the constitution because in the Dred Scott decision, in the 1850s, the Supreme Court held that African American couldn't be citizens, they were a category of people excluded and so the amendment was necessary in order to ensure those people, the African Americans, could be citizens.


Ted Simons:
So it was targeted pretty much toward African Americans?

Any Hessick:
That's right.

Ted Simons:
At the time, as far as you can tell, was there any discussion regarding illegal immigrants?

Andy Hessick:
There wasn't any discussion about illegal immigrants, but there was discussion about different groups of people who would become citizens. For example, there was a debate whether this amendment was appropriate because it would result in the children of Chinese people or gypsies, I think they said, becoming citizens and there was hesitation about that. And -- and they talked about it and the senators agreed that this amendment would, in fact, extend citizenship to those children.

Ted Simons:
Even at that time, they knew there were a couple of question marks but thought they could be included.

Andy Hessick:
That's correct of though they didn't phrase it in terms of illegal immigrants.

Ted Simons:
30 years later, a case involving Chinese immigrants.



Andy Hessick:
In that case, it involved whether a person who was the child of two Chinese subjects, Chinese citizens who had been in the United States, he was born in the United States, although his parents were Chinese citizen, the question was whether he was a citizen of the United States. But that's the important question.

Ted Simons:
What was the discussion like? What were the concerns?

Andy Hessick:
The supreme court said -- well, the concern they didn't want just anyone in the United States to be a citizen and the Supreme Court said well, anyone born essentially in the United States is a citizen, with two exceptions. And the first exception is the child of a diplomat. And the second exception is when the child is born to foreigners who are occupying -- occupying the United States. If they were hostile invaders and if they'd been born in that context. And I think there's a case from 1819 or so, or maybe a little bit earlier, in which the child of a British subject -- or, born in the United States territory was deemed not to be a citizen because they were born at a time when Britain was occupying part of the United States.

Ted Simons:
Right. So we've got the 1898 case that took on the 14th amendment and seem to have a clear ruling and yet there are those who are saying that needs more clarification. We still aren't quite sure if this is what the 14th amendment really says. Talk to us about that.

And Hessick:
Right, some people say maybe the 14th amendment wasn't meant to or shouldn't extend to the children of illegal immigrants. In terms of clarification, maybe they mean sort of correction, just a different interpretation. At this point, for them to sort of succeed in getting that different interpretation they would have to go to the United States Supreme Court and get the you had Supreme Court to agree with whatever interpretation they want to have.


Ted Simons:
Have there been attempts between 1898 and literally now to get that clarification, correction, however you want to put it?

Andy Hessick:
Nothing serious I'm aware of. I haven't checked everything. But -- but the 1898 case seems to be regarded as solid law that hasn't been seriously challenged.

Ted Simons:
You were talking about the subject to the jurisdiction thereof and senator pierce says those not here without proper documentation are not subject to U.S. jurisdiction. Is that a valid point?

Andy Hessick:
I don't think that's a valid point. I think it's a dangerous point to make.

Ted Simons:
How come?

Andy Hessick:
Because jurisdiction means power and if we say that someone is not subject to the U.S. jurisdiction, that means the U.S. has no power over that person. That means they could commit murder or federal offenses and the United States has no power over them.I don't think we want to take that position. If anything, we want to be able to exercise power over them.

Ted Simons:
When he says you can't draft these folks into military service or they can't serve on a jury and those things, we don't have the power to enforce those types of activity, you're saying -- what? -- that's a camel's nose under the tent kind of thing?

Andy Hessick:
We have jurisdiction in other respects, the criminal laws and within the bounds of the United States, they're subject to the laws the United States.

Ted Simons:
Another law maker says the subject to the jurisdiction thereof applies to those whose sole allegiance is to the United States, valid?

Andy Hessick:
That is -- I understand where he's coming from, because it depends on ancient English common law but it's way too technical relying on an old doctrine of allegiance to the king.

Ted Simons:
One other point, additional laws had to be made for American Indians born on reservations to become American citizens and if they have to take that step, why not a step regarding those of parents here with undocumented -- without the proper authorization?

Andy Hessick:
Right, American Indians are a special situation. There was a carve-out for the Indian, the native Americans and although that language was dropped, the Supreme Court has interpreted this provision, early on, they interpreted it not to CONFER citizenship, because it indicated the intent of the drafters, not to include.

Ted Simons:
Because that was originally a special case, it had to be addressed as special?

Andy Hessick:
That is right.

Ted Simons:
The concept of a state perhaps issuing a different kind of birth certificate as opposed to -- whatever federal guidelines there may be. Can I state do that?

Andy Hessick:
Well, so right now -- I want able to find any specific federal guidelines requiring the issuance of a birth certificate. There are certain requirements of birth certificates if it's going to be issued it has to meet requirements but actually just a state law requirement. I don't think right now, there's a problem necessarily with the state refusing to issue a birth certificate or issuing a different type as long as it meets minimum requirements. What problems might arise, in failing to issue a birth certificate to certain types of people, it might be viewed as discrimination or might infringe other types of rights. If a birth certificate is required for voting, then you can run into problems.

Ted Simons:
If you deny access because of this particular birth certificate, that could be trouble.

Andy Hessick:
That's right.

Ted Simons:
As it applies now and considered, they say they want to get this passed through the legislature and 13 or 14 other states and get the Supreme Court to look at it and think the Supreme Court will look at it and say that's not what the original intent was to allow illegal immigrants to have citizenship.






Andy Hessick:
Right, so I think that -- it's possible, it's very hard to guess what the Supreme Court is going to do. I think the difficulty is going to be that many people on the Supreme Court right now like to look back at history. That's their principle method of interpreting the constitution and the decision in 1898 catalogs up history. And that history consistently says that anyone born in the United States, so long it doesn't fall within dip mats or hostile enemies --

Ted Simons:
Good to see you thanks for joining us.

Andy Hessick:
Thank you.

Citizenship for Voting

  |   Video
  • An appeals court ruling strikes down Arizona’s requirement for proof of citizenship when voting. Capitol Media Services Howard Fischer explains the ruling.
Guests:
  • Howard Fischer - Capitol Media Services
Category: Law

View Transcript
Ted Simons:
Good evening and welcome to "Horizon." I'm Ted Simons.
Former Supreme Court justice Sandra day O'Connor is apologizing for her voice waking up tens of thousands of folks in Nevada. O'Connor's voice was used in a robocall that went out to 50,000 Nevada households after midnight, instead of after noon as intended. O'Connor's voice was used in calls supporting a state measure that would limit the role of elections in selecting judges. O'Connor said she did not authorize her voice being used and regrets that it was, but O'Connor defends her involvement in the campaign, despite critics who note that she's still a sitting judge and, thus, should refrain from political activity. Indeed, O'Connor was involved in a ruling yesterday by the ninth circuit Court of Appeals that struck down Arizona's requirement for proof of citizenship when registering to vote. A panel of judges that included O'Connor said that the state requirement is not allowed under federal law. The judges did not overturn a state requirement that voters provide I.D. before casting a ballot. Here to talk more about all of this is Howard Fischer of Capitol Media Services. Good to see you. We've got a three-judge panel.

Howard Fischer:
We've got -- it's not unusual for retired supreme court justices to go and sit in the circuits.

Ted Simons:
The idea this violates what federal law intent is regarding voter rights, correct?

Howard Fischer:
Oh, yes, and this is one of those wonderful areas of law where you say I wish I'd gone to law school. The national voter registration act, the idea behind it, they were concerned that some states were putting through requirements to make it harder for minorities to vote and get them qualified and said, look, we're going to have this uniform standard and more importantly, we want the federal government to create a single registration form. You can require proof of who you are and everything else. But it also said that you cannot require, quote, authentication, and that goes to the issue of citizenship. In other words, you can let the states say do you swear you're a citizen? Yes, you can let the state do that. What the ninth circuit said, you cannot require them to provide proof which is what the 2007 Arizona law said.

Ted Simons:
So they are saying it’s an additional requirement not permitted under the national registration voter act.

Howard Fischer:
Not permitted under the national voter registration act.

Ted Simons:
And the intent was to remove obstacles.

Howard Fischer:
The question is what's an obstacle. Bennett says it's nice, we can ask them to swear. That's like me going to the airport saying I'll sign an oath that I'm not a terrorist and don't have a bomb and therefore, you don't have to put me through the x-ray. He says that makes no sense.

Ted Simons:
Wasn't it looked at a few years ago as well?


Howard Fischer:
It was. After it was first approved, the same group of plaintiffs challenged.

Ted Simons:
Who were the plaintiffs?

Howard Fischer:
The Mexican-American educational fund and the Navajo nation and a few tribes. All said that these laws affect their rights to vote because you got into the issue of, for example, if you need to have a driver's license, either to prove citizenship or I.D. at the polls, you can't get that for free. They said it amounted to a poll tax. They had a series of challenges. When they went to the ninth circuit before and said, look, we want this law enjoined while we litigate it. The ninth circuit said we read the national voter registration act to say, yes, there's a federal standard but read it as allowing states to do anything else they need do to ensure the integrity of elections.
Therefore, we think the state can additionally require citizenship. Judge Ikuta acknowledged the ruling, and said, quote, they got it wrong and, therefore, we think we can overturn that three-judge panel.

Ted Simons:
You refer to the de facto poll tax. The three-judge panel didn't buy that and said that voter I.D. at the poll, when you go to vote, I.D., that's ok as well.

Howard Fischer:
That gets into a whole other set of laws including the voter rights act and brings us back to where we started. Which is voting law in this country is so convoluted because congress set out certain standards. The question is are they minimum standards or limits on what the states can do.

Ted Simons:
They may be convoluted but I think the bottom line is congress put these things in place and states as we seem to have every case, involving Arizona, states are messing around with them.
Howard Fischer:
And that becomes an interesting issue just ahead of Monday's hearing in San Francisco, this is another one of the fights over state eight rights. The ability of states to protect the integrity of their own elections versus the right of the federal government to set standards and decide we have preempted this field. Whether it's immigration in the case of Senate Bill 1070 or the question of voting.

Ted Simons:
Was it a surprise that justice O'Connor saw this the way it T she it.

Howard Fischer:
She was often the swing vote on the high court. Since she simply signed on to the judge's opinion, it's hard to know what was going through her mind. But clearly, she didn't mind they were overruling an earlier ninth circuit decision and clearly believed that the federal national voting registration act does preempt the states from doing something. It's her home state and she has interest in it.

Ted Simons:
What's next?

Howard Fischer:
The state will go ahead and ask the full ninth circuit to review it and obviously, if they refuse to overturn, then it goes to the U.S. Supreme Court, like so many other cases.

Ted Simons:
Howie, good to see you, thanks for joining us.

Howard Fischer:
You're welcome.

First Amendment Case

  |   Video
  • The United States Supreme Court has heard arguments on a first amendment case involving anti-gay protests at the funerals of soldiers. Arizona State University Journalism Professor Joseph Russomanno was at the hearing and talks about the case.
Guests:
  • Joseph Russomanno - ASU journalism professor
Category: Law

View Transcript
Ted Simons:
The U.S. Supreme Court is hearing a case that could lead to new limits on first amendment protections of free speech. The issue? At what point does free speech cross the line, causing harm to a private individual? The case involves a private military funeral for a fallen marine. Members of a Kansas church picketed the funeral, spreading their message that god kills U.S. soldiers because America tolerates homosexuality. Here to discuss the case is Dr. Joseph Russomanno, an associate professor in ASU's Cronkite school of journalism. He specializes in media law and the first amendment. Thanks for joining us.

Dr. Joseph Russomanno:
Thanks for having me.

Ted Simons:
This strikes me as a first amendment case where the message is so hostile to so many folks. It's a good test for the first amendment.
Dr. Joseph Russomanno:
It's a classic case where we have a message, a set of words both spoken and on signage that most people find abhorrent and can't tolerate.

Ted Simons:
Who are these people.

Dr. Joseph Russomanno:
The Westboro Baptist church, based in Topeka, Kansas membership has fluctuated between 50 and 70 over the years and almost all of the members are blood relatives and the pastor is the reverend Fred PHELPs and the rest of the membership is mostly his descendants.

Ted Simons:
And the signs we're seeing in the protests, the word "hate" seems to be a common motif. God hates you and America and protesting across the street from funerals, is -- what is -- what's going on here? What is the message?

Dr. Joseph Russomanno:
Well, they believe that there are a lot of issues of public importance they're obligated to speak out on and bring to everybody's attention what these issues are and how god feels about them. And more than that, that by not obeying the word of god, all the rest of us are sinners. And they believe one of the issues of public importance they need to address is the death of soldiers and marines in war and, therefore, they feel, they rationalize that going to funerals that are memorializing a soldier or marine is the appropriate setting for their pickets.

Ted Simons:
And the father of one fallen marine said enough is enough, went to court and got -- what? -- $2 million settlement?

Dr. Joseph Russomanno:
Actually $11.5 million and then reduced by the judge.

Ted Simons:
And then an appeals court said hold on here a second. They can go ahead and do this because of first amendment protection.

Dr. Joseph Russomanno:
That's right. The church appealed to a federal appeals court and the appeals court did overturn and thus, taking us and paving the way to the United States Supreme Court.

Ted Simons:
The issue isn't that these folks are saying and believing it, but they're saying and shouting so close to a funeral, a private affair?

Dr. Joseph Russomanno:
The father of the fallen marine in this case filed two claim, one for invasion of privacy and one for intentional infliction of emotional distress. Those are his two claims. There's a set of facts that there's some dispute about, one side taking one viewpoint and the other taking another, just how close they were and how much they may have invaded the privacy. The federal appeals court records say they were 1,000 feet away from the entrance to the church where the funeral was held.

Ted Simons:
Was it Maryland where this funeral was held?

Dr. Joseph Russomanno:
Yes.

Ted Simons:
If the Maryland state law says you can't protest -- I mean, there's statutes on the books, you can't protest closer than 2,000 feet, half a mile, whatever, for a funeral, a church service, something along these lines, would the case have made it this far?

Dr. Joseph Russomanno:
There are laws in effect and were in effect in this particular case. One of the things about the westboro church membership to keep in mind in trying to understand them as best we can, they are not stupid people. In fact, quite the opposite, very bright. Most of them are attorneys, for example. And, in fact, the attorney who represented the church at the United States Supreme Court is one of the members of the PHELPs family. A member of the church. Part of the point I'm trying to make here is they go to great lengths to find out what the local laws are wherever they're going to picket and follow them to the letter. And so they do everything they possibly can to make sure they're not violating the law as -- as part of their picketing.

Ted Simons:
With that in mind, what does the court do? Because the court sees statute and sees they didn't break the law and also seeing that something might need to get done, but if it is, what does that mean to first amendment protection?

Dr. Joseph Russomanno:
Right, it clear they did not break any criminal law but the plaintiff, the original plaintiff in this, the marine's father, is filing civil law claims. So what does the court do with this? Well, as I heard one of your previous guests say, we're reluctant to predict, especially will the United States Supreme Court and I will follow suit, I mean, I can tell you that the insight of the court -- inside of the court that day, there were questions from the Supreme Court justices to both sides with -- with a lot of doubt about, it seemed to me, which way to go on this case. So I think, based on what I saw and heard, it's very much up in the air at this point.

Ted Simons:
Ok. Let's say we get a decision one way or the other. Implications for free speech in America?

Dr. Joseph Russomanno:
If it's a ruling for the westboro Baptist church saying the first amendment protects their rights, I think that follows a line of cases we've seen previously from the Supreme Court involving controversial, even what we might call hateful speech. Whether it was burning the United States flag, cross burning, the Supreme Court with different memberships in previous years, granted, has said those kind of things are protected. So this would follow in line. If it goes the other way, I think what this court is telling us they're carving out an exception to first amendment protection and saying here is a different kind of circumstances that we hadn't dealt with before that we're saying is -- is sacred and should be protected and the first amendment does not allow for that.

Ted Simons:
You got to be careful, though, don't you? Can you carve something like that out and all of a sudden, a lot of things can fit into that carving.

Dr. Joseph Russomanno:
It's a textbook example of a slippery slope and one that a lot of people are afraid to proceed down.

Ted Simons:
I wanted to ask how you're using this particular episode, this case, to teach your students about the first amendment and the rights therein? What are you telling them?

Dr. Joseph Russomanno:
Before there's a ruling --what can I say, I lay out the circumstances and simply point to the fact that here -- here's another one of these examples of a case that is classically testing the limits of the first amendment. And testing us as a society in terms of how willing we are to accept someone's free speech and the rights to it, even when it's something we personally find abhorrent.

Ted Simons:
Fascinating case and we'll keep an eye on the court on that one.

Dr. Joseph Russomanno:
Thank you.

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