Cognitive Dissonance: Fox Cheerleads Constitution Reading While Targeting 14th Amendment
Fox News lauded Republicans' ceremonial reading of the U.S. Constitution on the House floor. However, Fox News figures have boosted right-wing efforts to change birthright citizenship as provided by the 14th Amendment in order to exclude the children of illegal immigrants.
Fox News Promotes GOP's Recitation Of The Constitution
Hannity: Reading The Constitution Is "A Nod To The Tradition Of Individual Liberty." From the January 5 edition of Fox News' Hannity:
SEAN HANNITY (HOST): And in a nod to the tradition of individual liberty that Speaker Boehner mentioned, the 112th Congress will read the Constitution aloud on the House floor tomorrow. Now, the contents of that document may come as quite a surprise to some of the Democrats present in the House chamber.
And joining me now with reaction to today's momentous events is somebody who played a major role in them in that House Majority Leader Eric Cantor.  I'm sure you like the new title, sir?
CANTOR: Sean, it is great. It's a great day and it is great to be with you.
HANNITY: All right. One thing, before we get started here. Democrats seem to be getting all bent out of shape over the idea of reading the Constitution on the House floor. Let me give you an example, Jerrold Nadler of New York said, they are reading it like it is a sacred text. He called it a ritualistic reading. He said, it is total nonsense and propaganda. A constitution?
CANTOR: I mean, can you even imagine, Sean? But, you know, we are going to start tomorrow. And we are going to read the Constitution on the floor of the U.S. House of Representatives. In our Pledge to America, we committed that this going to be a constitutional U.S. House and that's what we intend to do. And in fact, one of the rules that we are going to abide by is that upon submitting any bill to be considered in the House, any member must put in writing, his or her basis in the Constitution for that bill. And from where in the Constitution should and does Congress derive its power.
HANNITY: I think it's a refreshing change. [Fox News' Hannity, 1/5/11, accessed via Nexis]
Rosen: The Reading "Restor[ed] The Solemnity We Like To Think Is Permanently In Session On The House Floor." From the January 6 edition of Fox News' Special Report:
JAMES ROSEN (CORRESPONDENT): Republicans conceive the reading to enshrine the Constitution as the legislative benchmark. Democratic critics called it a diversion. Vanity Fair claimed the exercise cost taxpayers several million dollars, but cited only Congress' normal operating costs. Historian Alan Brinkley of Columbia University told Fox News it was, quote, "implausible for Republicans to think the Constitution can be a vehicle for shrinking the government."
ROSEN: More than 130 lawmakers from both parties participated restoring the solemnity we like to think is permanently in session on the House floor. They included the newly empowered and the newly disgraced, the young and the old. [Fox News' Special Report, 1/6/11, accessed via Nexis]
Doocy Wonders If The Left "Like[s] The Constitution." From the January 6 edition of Fox News' Fox & Friends:
STEVE DOOCY (co-host): So this idea of reading the Constitution, you know, Robert Byrd would be all for it. Although there are a number of people now on the left who say it's not a good idea. It's a gimmick.
GRETCHEN CARLSON (co-host): This is because the left doesn't like, for the most part, the Tea Party. This is a total political hit.
DOOCY: Forget about that, do they like the Constitution? [Fox News' Fox & Friends, 1/6/11 ]
Krauthammer: Constitution "Is The Essence Of America, And It Makes Us Unique." From the January 5 edition of Fox News' Special Report with Bret Baier:
BRET BAIER (HOST): Tomorrow, Republicans will read the U.S. Constitution on the House floor. And Charles, there is a lot of push back about doing that.
CHARLES KRAUTHAMMER (FOX NEWS CONTRIBUTOR): It is truly astonishing. You got one member of Congress called it a long, dull document. "The New York Times" editorial reading of the Constitution in the House is presumptuous. Liberals got in trouble in the 60s and 70s for being on the wrong side of the flag and anti-war demonstrations and now three decades later, they want to be on the wrong side of the constitution.
The Constitution, after all, when these members were sworn in today if they did not swear to defend the country or the army or the people, it was to defend the Constitution. That is the essence of America, and it is what makes us unique and why we are a country not of blood or race but ideas. For liberals to think that there is an advantage in dismissing reading the Constitution and the requirement of having a constitutional reason to introduce a bill is real bad politics.
BAIER: A tip to the Tea Party, Steve, for Speaker Boehner to do that.
STEVE HAYES: Very smart to do it, and it should be unobjectionable, and surprisingly it is not. [Fox News' Special Report, 1/5/11, accessed via Nexis]
Hemmer: "I Think All Americans Can Learn From This Exercise This Morning." From the January 6 edition of America's Newsroom:
BILL HEMMER (HOST): What do you think about the readings of the Constitution? Are you cool with that?
REP. STEVE ISRAEL (D-NY): I think it's wonderful. I think we ought to do it in every Congress. The Constitution is our foundational document and it does the American people and it does my colleagues well to remind ourselves of the values within the Constitution. Establishing justice, providing for the common defense, promoting the general welfare.
Now we should not just read the Constitution, we need to make sure that we are living up to its ideals. We need to make sure that we are passing legislation that embodies the values of the Constitution. I'm hopeful that Republicans and Democrats will find ways of doing that in this Congress.
HEMMER: Yes, well, everybody is watching. I assume, based on that answer, you disagree with your colleague Jerry Nadler out of New York? Because he called the whole thing total nonsense and propaganda.
ISRAEL: Look, no, I don't think the Constitution is propaganda and as I said I think it's a valuable exercise and an important moment in this Congress for us to read the Constitution. But I do think that you can't just read it like a speech and then leave skid marks on it in your legislative record. We've got to make sure that we are pursuing all of the values that are embodied in that Constitution.
HEMMER: That's is an -
ISRAEL: Not just by reading it but by acting on it.
HEMMER: It's a good phrase to use. And thank you for sharing that. I think all Americans can learn from this -- this exercise this morning. [Fox News' America's Newsroom, 1/6/11, accessed via Nexis]
Fox Attacks Birthright Citizenship Provided By The 14th Amendment
O'Reilly: "Of Course" The Country Did Not Want "Anchor Babies" To Become Citizens "When It Ratified the 14th Amendment in 1968." From the January 6 edition of Fox News' The O'Reilly Factor:
BILL O'REILLY (host): Then there are the anchor babies born to illegal aliens on American soil. Under the 14th Amendment they automatically become citizens. Think about it: do you think the country wanted that when it ratified the 14th Amendment in 1868? Of course not. That amendment was designed to make sure that freed slaves got citizenship. Now it's used to encourage foreigners to sneak across our borders to give birth. Thus the Constitution is being misused. [Fox News' The O'Reilly Factor, 1/6/11 ]
Johnson Jr.: We Should "Begin To Discuss" A Second Class Of Citizenship For Children Of Illegal Immigrants. From the January 6 edition of Fox News' Fox & Friends:
PETER JOHNSON JR (Fox News legal analyst): You know, the 14th Amendment goes back to the post-Civil War period when a senator from Michigan proposed that the children of freed slaves be conferred American citizenship. There'd be no doubt that they were in fact American citizens. So now a group of legislators from five different states want bring this law to forty states in the United States and perhaps even in the congressional sense, that there could be in fact two classes of citizenship. Meaning that if your parents are illegal in this country, then you would not be conferred the same type of citizenship that others--
CARLSON: Well what kind of citizenship would you get
JOHNSON: I don't know. And this is something that I think that we need to begin to discuss in this country. You know, the beginning of the health care debate, I had grave doubts about the constitutionality of Obamacare in terms of mandating people's ability or right to buy insurance and so I called upon our viewers and said help me on this constitutional issue because the American people are the best constitutional scholars, the people that live next door, better than a lot of the constitutional lawyers that I know.
JOHNSON: I would like to begin to look at this issue, I started looking at it last summer, but I think as a country we need to begin to look at this issue seriously and say is the intent of the Constitution, the senator back in 1866 who proposed this for freed American slaves and their children, was the intent to protect illegal immigrants that have sought the protection of the United States without the benefit of documentation. Should we be conferring citizenship on those people? So I would love it if people would twitter me. [Fox News' Fox & Friends, 1/6/11 ]
Johnson Agreed That "Intent" Of Citizenship Clause Was Not To Give "Citizenship To Illegal Immigrants." From the January 7 edition of Fox News' Fox & Friends:
BRIAN KILMEADE (HOST): Peter Johnson, were you surprised by the volume of the response?
JOHNSON: No, I really wasn't and I'm excited by it because a lot of people are interested in the Constitution and they're interested in this issue because of economic necessity when you have 340,000 people who are having illegal immigrant children in this country who some say are conferred natural citizenship as a result of the 14th amendment and the government does as well they say this is an economic crisis in our country and we need to rethink what citizenship means. I got one tweet from Seeking Reason. Seeking Reason said "the fourteenth amendment was created with a clear intent and that did not include giving citizenship to illegal immigrants."
Well, that's right. We were just talking about it before. The fourteenth amendment was created in response to the Dread Scott decision. This is a post-civil war amendment that says freed slaves were in fact citizens, that African Americans were citizens because they were not conferred such a right under the ability of the U.S. Constitution.
JOHNSON: So what this person is saying, Ana Romanik from Rhode Island. Some of these parents are cleaving onto these children to say, well are you going to separate me from this child that's been born in this country. My child is a US citizen. I might have snuck in here. So this is a frankly divisive and controversial issue that we should be looking at in this country.
KILMEADE: Now congressman Steven King is bringing it up. He's got like four supporters already so were not just talking theoretically this is an issue America is facing.
JOHNSON: They're looking to do it on a state level and they are looking to do it in Congress to reform the immigration and naturalization act to say that if you are and illegal alien if you are an undocumented citizen and you have a child here, that does not necessarily mean that that child becomes a US citizen. I have looked hard at the cases and I want my viewers, our viewers to look at the case called US vs. Wong Kim Ark an 1897 case and then look at the dissent from the case. The dissent from that case said the Chinese immigrant should not be a citizen based on the 14th amendment. [Fox News, Fox & Friends, 1/7/11 ]
Carlson Described 14th Amendment As The One That Allows "Illegals" Born In U.S. To Be Citizens. From the August 17 edition of Fox News' Fox & Friends:
CARLSON: John McCain there on Hannity last night was talking about whether or not the 14th Amendment should be repealed and whether or not there should be hearings about that and that's of course the amendment that allows illegals born here to automatically become American citizens. [Fox News' Fox & Friends, 8/17/10 ]
Fox Labeled 14th Amendment The "Anchor Baby Amendment." From the August 4, 2010, edition of Fox News' Fox & Friends:
DAVE BRIGGS (guest host): Meanwhile, Republicans want Congress to work on some other form of constitutional control, that being the 14th amendment to the United States Constitution, basically the anchor baby amendment. [Fox & Friends, 8/4/2010 ]
Doocy: "Maybe It's Time To Go Ahead And Re-Examine The 14th Amendment." From the August 4 edition of Fox News' Fox & Friends:
DOOCY: If you're in the United States and you're in the country illegally and not necessarily a citizen, if you have a baby here, that baby is a citizen and suddenly that baby has all of the rights granted to Americans even though their parents do not.
BRIGGS: Now Jeff Sessions and a number of other GOP Congressmen coming out saying wait a second, we've got an issue with the 14th Amendment and Senator Tom Coburn says we need to rethink this 14th Amendment.
DOOCY: And one of the things that apparently prompted a number these lawmakers to say we've got to examine this is the fact that apparently the Washington Post did an article not long ago where it talked about how Chinese women come into this country through visas and some illegally have babies and suddenly the children are citizens, and they go hey you can't get rid of me because my kid is an American citizen. And they do it for money and it is a very unseemly business and why not have a dialogue about changing it? Maybe that is - remember this wasn't added until let's see 1868 to the U.S. Constitution, maybe it's time to go ahead and re-examine it. [Fox News' Fox & Friends, 8/4/10 ]
Beck: "It's Time To Cut That So People Don't Come Over The Border, Have A Baby Here And Then You've Got A Foot In the Door." From the May 6, 2010, edition of Fox News' Glenn Beck:
BECK: This was a slavery thing because people were afraid that now we were going to say well, you're not a legal resident, you're illegal, you know, who are you. And they would tell the slaves that they had no place to go. No. No. That's what anchor babies are -- this is the only country that has it. Slavery's a long time ago. It's time to cut that so people don't come over the border, have a baby here and then you've got a foot in the door. It just - we're the only country that does it. Stop. It was for a good reason. No longer. [Fox News' Glenn Beck, 5/6/2010 ]
Hannity: "We Should Change That Rule" That Allows Children Of Illegal Immigrants To Be Citizens. From the January 9, 2007, edition of Fox News' Hannity & Colmes:
HANNITY: There is a huge problem we have in this country about illegal immigration. People don't respect our laws and our sovereignty, and as a much broader issue to do with everybody's national security.
You agree, right? We're in agreement?
JOHN LIU (THEN-NEW YORK CITY COUNCILMAN): We absolutely have a problem with immigration, and the laws need to be fixed.
HANNITY: So the question is here we have this term -- you've heard -- anchor baby. In other words, if a baby is born, even if the parents are illegal immigrants, they're in the country illegally, the baby is automatically a citizen. I think we should change that rule, that law. Do you agree with me?
LIU: Do you really think people are coming to this country just to have their babies?
LIU: People are coming...
HANNITY: Some people I think are. [Fox News' Hannity & Colmes, 1/9/07, accessed via Nexis]
Legal Experts Reject Claim that Citizenship Clause Excludes Children Of Illegal Immigrants
Section 1 Of The 14th Amendment  States:
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. [Law.Cornell.Edu , accessed 1/7/11 , emphasis added]
CRS: Congress "Intended To Extend U.S. Citizenship" To Everyone Born In The U.S. Regardless Of "Alienage Of The Parents." The Congressional Research Service (CRS) stated in a September 2005 report:
Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents. [Congressional Research Service, 9/13/05 ]
Fox Forwarded Claim That Undocumented Immigrants Are "Not Subject To The Jurisdiction Of The United States As Defined In The 14th Amendment." From the January 6 edition of Fox News' America Live:
MEGYN KELLY (host): Peter, you got five states yesterday who called themselves state legislators for legal immigration but they are 5 of at least 14 they believe that are going to introduce these measures to try to deny state citizenship to so-called anchor babies, it's a baby born to illegals who under the US Constitution gain citizenship. They are going to try and deny state citizenship and then they're going to try to offer a motion saying or a recommendation saying feds please do the same thing. And does that hold up legally?
JOHNSON: This is the next great immigration issue in the United States. And we were just talking about it before, there is some precedent on it, but I think the precedent is weak--
KELLY: It's over 100 years old - the U.S. Supreme Court took up the question of are you a citizen if you're born in this country under the 14th Amendment and you're parents are illegal--
JONHSON: And I think it was a political determination at that point.
KELLY: And it said yes.
JOHNSON: It said yes and it involved some Chinese immigrants and the birthright citizen issue and it came to the conclusion that there were so many people of English and Irish and Scotch decent who were not legal citizens of this country and have children that we can't deny the Chinese -- the new Chinese Americans the same rights that others had. So I don't know if it was a Constitutional issue. The Constitutional argument today that is being made is that the folks who are illegal immigrants, undocumented aliens are not subject to the jurisdiction of the United States as defined by the 14th Amendment.
KELLY: That's part of what the 14th Amendment says. The parents have to be subject to the jurisdiction of the US in order for their child to automatically become an American citizen, and the critics of anchor babies say that doesn't apply to the child of two illegals who are here in this country because they are not really subjecting themselves to the jurisdiction of the U.S.
JOHNSON: And they're not subjecting themselves to the jurisdiction because they haven't sworn allegiance to the United States of America and therefore definitionally cannot be involved.
KELLY: If this goes up to the Supreme Court, is there any realistic chance the U.S. Supreme Court holds the 14th Amendment does not confer automatic citizenship on anchor babies?
JOHNSON: If it's a totally political determination, then it will lose. [Fox News' America Live, 1/6/11 ]
Former Thomas Clerk: "Subject To The Jurisdiction" Of The U.S. Means Those "Who Are Required To Obey U.S. Laws." James C. Ho, former Texas solicitor general who previously clerked for Justice Clarence Thomas, worked in the Bush Administration and served as Chief Counsel to Sen. John Cornyn (R-TX), wrote in 2006:
To be "subject to the jurisdiction" of the U.S. is simply to be subject to the authority of the U.S. government. The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.
Of course, the jurisdictional requirement of the Citizenship Clause must do something - and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most notably, foreign diplomats and enemy soldiers - as agents of a foreign sovereign - are not subject to U.S. law, notwithstanding their presence within U.S. territory. Foreign diplomats enjoy diplomatic immunity, while lawful enemy combatants enjoy combatant immunity. Accordingly, children born to them are not entitled to birthright citizenship under the Fourteenth Amendment. [The Green Bag, Summer 2006 ]
Supreme Court Ruled That Citizenship Clause Applies To "All Children Here Born Of Resident Aliens." Ho further noted that in United States v. Wong Kim Ark "the U.S. Supreme Court confirmed that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship under the Fourteenth Amendment." The Court stated:
The fourteenth 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, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
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. [U.S. v. Wong Kim Ark, 3/28/1898 ]
Supreme Court Rejected Claim That Unauthorized Immigrants Are Not "Within The Jurisdiction" Of A State. Ho further wrote that "the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe (1982)" -- which struck down a Texas law denying education funding for illegal immigrants -- and that "although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are 'subject to the jurisdiction' of the U.S., no less than legal aliens and U.S. citizens." Ho wrote:
Writing for the majority, Justice Brennan explicitly rejected the contention that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase 'within its jurisdiction.' "
The four dissenting justices -- Chief Justice Burger, joined by Justices White, Rehnquist, and O'Connor - rejected Brennan's application of equal protection to the case at hand. But they pointedly expressed "no quarrel" with his threshold determination that "the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state." [The Green Bag, Summer 2006 ]
Princeton Pprovost Eisgruber: "Children Of Illegal Aliens Are Certainly 'Subject To The Jurisdiction Of The United Sates' In The Sense That They Have No Immunity From American Law." In a 1997 New York University Law Review article, Christopher L. Eisgruber, provost of Princeton University and a former clerk for Supreme Court Justice John Paul Stevens, wrote:
The United States Constitution guarantees citizenship to almost every child born in the United States. Apart from an exception for children born to foreign diplomats, the Constitution's birthplace principle applies without regard to the ethnicity or legal status of a child's parents - so, for example, children born in the United States to illegal aliens are American citizens.
Wong Kim Ark suggested that the jurisdictional proviso should be read narrowly. The majority was of the view that 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 - both of which ... had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
As one might infer from this passage, it is generally accepted that the jurisdictional proviso excludes from citizenship children born to foreign diplomats in the United States. That result seems reasonable since diplomats enjoy special immunity from domestic law and reside in the United States only to serve a foreign sovereign.
Professors Schuck and Smith recognize that their interpretation departs markedly from existing law. Much of the argument in their book is historical in character. As they point out, however, the historical evidence yields no clear conclusions about the implications of the Fourteenth Amendment for the children of illegal aliens; indeed, Congress did not begin restricting immigration into the United States until after the Fourteenth Amendment was enacted. Moreover, the reading proposed by Schuck and Smith is hardly the most textually obvious one - the children of illegal aliens are certainly "subject to the jurisdiction of the United States" in the sense that they have no immunity from American law. [New York University Law Review, April 1997 ]