Arizona birth certificate law strangeness

If Arizona hasn't gone and done it again. According to Time Magazine,

Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona ...

Arizona is a beautiful place with an expansive countryside -- crowned by the Grand Canyon -- with so many friendly and kind people. How is it then that the state manages to come off looking so odd-ball?

According to the Time article, some Arizona legislators want to withhold birth certificates of children born in Arizona, to parents who are not U.S. citizens.

The United States is a country which confers citizenship to anyone born in the country -- the so-called "natural born." Hence, to prove citizenship, someone born in the United States needs only to show a birth certificate to prove they are an American. Those not born in the United States need to get naturalization papers to provide this proof.

Under this theory, if a child is by definition an American citizen by virtue of being born within the United States, then it follows children born of non-citizens are citizens of the United States. Some think that this is a loophole, and now the Arizona legislature is attempting to plug the loophole by withholding citizenship from these children by not supplying a birth certificate.

Does withholding or otherwise manipulating a birth certificate invalidate citizenship? Possibly not.

The 14th Amendment to the United States Constitution states, in part:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th Amendment was in large part meant to deal with emancipated slaves, who were native-born, but not full citizens prior to their emancipation. After emancipation, former slaves were in limbo and some people questioned the status of former slaves, as citizens. The 14th Amendment helps to clarify their status as full citizens, despite the circumstances of their birth in servitude.

Some southern revisionist may say that the 13th, 14th, and 15th amendments were foisted on the secessionist states by scalawags and carpetbaggers ... and there are those who say the votes weren't quite right for ratification of the 14th. Certainly the 14th amendment has been applied in any number of instances in the 132 years since its enactment, not to mention some degree of consternation because it has the "equal protection" language in it.

Now the 14th is under attack by Arizona Republican and state Senator Russell Pearce. He is the man behind a move to strip persons born in the United States of the citizenship protected under the 14th. Of course, it is not phrased that way. It is couched in terms that those born in the United States, who fall under the proposed law, would not be given their birth documents. More benign sounding, as if the State of Arizona has the right to decide who and who is not a citizen of the United States.

But the 14th is very clear that people born in the United States are citizens, without the permission or acquiescence of any State government. At the moment of their birth, these newborns are United States citizens, birth certificate, or not. The intent of the legislation seems to be that by withholding the birth certification, the citizenship of these newborns can be reversed. But notice that Section 1 of the 14th Amendment says nothing about birth certificates. Given the world on 1868, when people were born at home, birth certificates were not de rigueur.

Even 68 years later, in 1936 to be exact, birth records were not that important, as we read in a Washington Post article about Arizona Senator John McCain's birth records.

Curiously enough, there is no record of McCain's birth in the Panama Canal Zone Health Department's bound birth registers, which are publicly available at the National Archives in College Park. A search of the "Child Born Abroad" records of the U.S. consular service for August 1936 included many U.S. citizens born in the Canal Zone but did not turn up any mention of John McCain.

The lack of such birth records does not make McCain any less a "native born" citizen.

Possible discrepancies in the bureaucratic paperwork are of little concern to Laurence Tribe, a Harvard law professor who looked into [whether McCain was a "natural born" American] . . . . Tribe said it would be "astonishing if the recordkeeping practices of Canal Zone [officials] could have any bearing on eligibility for the U.S. presidency."

Perhaps the same can be said of Arizona's pending legislation. It holds no force. It carries no sway. The matter of who is a citizen falls to the Federal Immigration and Naturalization Service and the Department of Justice, not any state.

Nevertheless Arizona state Senator Pearce argues in the Time article,

the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," Pearce says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right."

Citing the popularity of such a bill, the article goes on,

He and other Republicans in the red state Arizona point to popular sympathy: 58% of Americans polled by Rasmussen think illegal immigrants whose children are born here should not receive citizenship; support for that stance is 76% among Republicans.

Of course, the reason the founders wanted a Bill of Rights was precisely to protect against majorities, 58% or otherwise, riding roughshod over people -- newly-born citizens, included.

And now for the second round of birth-certificate-driven, odd-ball, politics. In a New York Channel 2 story we read,

The Arizona House has approved a bill that would require President Barack Obama to show his birth certificate if he hopes to be on the state's ballot for a re-election bid.

The report goes onto say that the State of Hawaii has passed legislation to deal with a flood of inquires about the President's birth certificate. The birth certificate has already been shown, and doing so time and again is a waste of taxpayer money.

Perhaps the Arizona law will snare some of the people going across the boarder of one of the 13 other states that share the boarder with Canada, but I doubt that that is the real reason for all the Arizona brouhaha. The irony, if it can be called that, is how far people will go to erect fences and walls and how much birth certificates matter when the individual is darker-skinned.

Read further in the Washington Post article concerning Arizona Senator, John McCain's natural-born status,

The key constitutional issue is whether the Canal Zone was part of the United States .... the sovereignty question is "more complex" than Olson and Tribe concede. People born in some U.S. territories, such as American Samoa, are not recognized as citizens of the United States. According to a State Department manual, U.S. military installations abroad cannot be considered "part of the United States" and "A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." Tribe said the manual is an "opinion" with no legal status.

According to the Washington Post, other lighter-skinned folks, besides McCain, have run for President without there being such angst,

Vice President Charles Curtis, who served under President Herbert Hoover and was born in the territory of Kansas in 1860, a year before it became a state. The 12th Amendment requires that vice presidents possess the same qualifications as presidents.

Several prominent politicians have run for the presidency without having been born in the United States, including Barry Goldwater, who was born in the territory of Arizona in 1909, three years before it became a state. Mitt Romney's father, George Romney, ran in 1968, even though he was born in Mexico. Since neither Goldwater nor Romney won the presidency, the "natural born" clause was never tested.

Looking back at the 14th Amendment, Section 3, it appears that we are a forgiving people -- even able to seat those, right after reconstruction, who took up arms against the United States. And during that same time, blacks were unseated and through adroit legislation, were disenfranchised. Rewriting reconstruction as a time of Northern excess and oppression of Southern citizens, does not always square with history -- see "The Era of Reconstruction," 1865-1877 by Kenneth M. Stampp. What actually happened was that after defeat, the southern states passed legislation that favored the white man and removed the darker-skinned people from power. We may be seeing another round of carefully crafted legislation that takes away people's rights. Same-old, same-old?

It is doubtful the Arizona legislation will be upheld, but then again you never know with members of a Supreme Court who look to 18th century "intent" to apply to 21st century circumstances. So the battle goes on.

And yet there is cause for hope. What some might call the most Secess' states of all, first-to-secede South Carolina, has led the way by nominating Nikki Haley, an Indian-American for governor in Tuesday's primary.

Having won re-election in the midst of a Civil War, Lincoln said in his second inaugural

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

It has been 135 years since Lincoln called on the citizens to bind up the nation's wounds and that we find "lasting peace among ourselves." That time may be here. Maybe now is the time to really start that healing and put all the birth-certificate-driven politics behind us.