August 19, 2010

It seems that back in 1993, Sen. Harry Reid attacked birthright citizenship for children of illegal immigrants, a position he later renounced and now stands thoroughly opposed to.

But the change in position gave Ann Coulter and Bill O'Reilly a chance not just to whack Reid last night on Fox, but for Coulter -- that self-described "constitutional attorney" -- to claim that the 14th Amendment doesn't really create birthright citizenship:

COULTER: And by the way, it is being lied about every place, but this is what the 14th Amendment required. I mean, Americans -- what Harry Reid was saying was utter common sense. Americans must be sitting back thinking, "What were they thinking back in 1860? Were Americans really worried? What is it? We haven't guaranteed citizenship."

O'REILLY: No, it was a totally different things. It was African-Americans being liberated from slavery.


O'REILLY: It was Native Americans being tossed off their land.

COULTER: It was not Native Americans. Native Americans were excluded from the 14th Amendment. It was all about Reconstruction. It was about free slaves, this multi-culti rainbow coalition is a brand-new invention.

It wasn't like Americans were upset that the deadbeats couldn't slip into the country and have babies and start collecting welfare. We didn't have welfare then. It was amazing they even thought about it.

It was all part of Reconstruction to get an amendment added to the Constitution.


COULTER: It was a big step. This whole baby anchor thing comes from a footnote that was not related to the opinion, in an opinion by Justice Brennan in 1982.

O'REILLY: But it would be very hard. It would be very hard and, I think, impossible.

COULTER: It's not in the Constitution.

O'REILLY: I think it's impossible now to get that anchor baby thing to be illegal, because you would have to get -- they would tie it to the 14th. Then it would have to go to the Supreme Court. Is it part of the amendment or not?

COULTER: Look, whether this is done by -- legislatively or by passing an amendment, I don't care about. I do care about being lied to about what the 14th Amendment says.

O'REILLY: OK, but let's be...

COULTER: That is a lie.

But then, a little over an hour later, former Whitewater special prosecutor Kenneth Starr -- the conservative attorney whose work pursuing Bill Clinton in the 1990s gave Ann Coulter her original raison d'etre as a media figure -- came on Greta Van Susteren's show and explained exactly why Coulter is full of crap:

STARR: Well, Greta, I think it would take a constitutional amendment to change that. You know, this is an ancient part of law, that we then made absolutely clear in the 14th Amendment, which was ratified after our Civil War. And the 14th Amendment guarantees every person certain rights to due process, to the protection of life, liberty and property, to the equal protection of the laws. And that is such an important set of protections for all of us as Americans.

But it also begins -- that is, the 14th Amendment, this post-Civil War amendment begins with a specific definition that a person born in the United States and subject to the jurisdiction of the United States is a citizen of the United States. That's pretty clear to me.

So I think it would take a constitutional amendment to change it. But it's not as if the ratifiers and the architects of the 14th Amendment just made it up. They were really restoring a very venerable tradition in English law and frankly United States law -- until the infamous tradition of the Supreme Court in Dred Scott that held African Americans, those who were in a condition of servitude, who were slaves, were not citizens of the United States. That was profoundly wrong, and it took a constitutional amendment to overrule that decision of the United States Supreme Court.

Coulter might also want to check with Michael Gerson:

The authors of the Fourteenth Amendment guaranteed citizenship to all people "born or naturalized in the United States" for a reason. They wished to directly repudiate the Dred Scott decision, which said that citizenship could be granted or denied by political caprice.

They purposely chose an objective standard of citizenship -- birth -- that was not subject to politics. Reconstruction leaders established a firm, sound principle: To be an American citizen, you don't have to please a majority, you just have to be born here.

Ah, but Coulter and O'Reilly are obviously species of that 21st-century political creature: the Dred Scott Republican.

PolitiFact has a balanced and thorough rundown of the facts about "anchor babies".

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