Friday, July 24, 2015

A Satchel of Embarrassments: Horace Gray and Elk v. Wilkins

Horace Gray
That Fourteenth Amendment, the one by which the newly freed slaves were granted both national and State citizenship, was not, by its terms, limited to granting citizenship to the former slaves. The pertinent portion of the 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. 
Justice Gray makes his way into the Bag of Shame, shiny pate and all, because when he had the opportunity to give to the Fourteenth Amendment its plain, textual and natural reading, he did not do so. Rather, he strained at the Clause's obvious language to produce a decision in many ways indistinguishable from Dred Scott v. Sandford, except that Dred Scott at least predated the Fourteenth Amendment.

Gray's stumble came in the case of John Elk, a Native American that severed relations with his tribe and sought to vote in a Omaha, Nebraska, city election for members of the City Council. Elk tried to register to vote in the election and he was rebuffed on the ground that he was ineligible due to his lack of citizenship.  Elk's application, and his pleadings in subsequent litigation, established beyond dispute that he severed ties with his tribe and subjected himself fully to the "jurisdiction" of the United States thereby.

Under the Fourteenth Amendment, Elk had become a citizen of the United States by virtue of two separate incidents:  his birth within the United States, and his submission of himself to the jurisdiction of the United States when he severed ties with his former tribe. Neither the incidents of his birth, nor the fact of his severing ties with the tribe were disputed. So, it would seem that his attempt to register to vote should have raised no difficulty.

The Constitution can be just that simple. One reads its words. One sees its meaning. One applies its terms in accord with their plain terms and plain meaning.

Justice Gray, however, did not see things in this way.

Instead, Justice Gray undertook his convoluted deconstruction of Elk's new citizenship and of Elk's deliberate pursuit of citizenship in accord with the Constitution. Where the plain words of the Fourteenth Amendment patently admit that one born in the United States is a citizen of the United States if they are subject to its jurisdiction, Gray rejected that reading. Rather, Gray's opinion
construe[d] the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside;' whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.
By his artificial construction of the Fourteenth Amendment's Citizenship Clause, he actually created a circumstance that the Fourteenth Amendment had been enacted to ameliorate, the ongoing presence within the Nation of an underclass. Justice Harlan explained in his dissent:
If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the fourteenth amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.
Justice Gray, deformed the Citizenship Clause by adding his artificial requirements to its express terms. In the process he did injustice to a lawful claimant of citizenship, did damage to the language and frame of the Constitution, and failed to account in his decision for the great national blood-letting that was so recently concluded with the enactment of the Fourteenth Amendment. These are all reasons why, for this decision, Justice Gray's head belongs in the Satchel of Embarrassments.