The Due Process and Equal Protection Clauses - Case Study Example

 Asian Americans and Birthright Citizenship: The Fourteenth Amendment, that was proposed and ratified immediately after the civil war is regarded as one of the most important legislations appended to the United States constitution. The Due Process and Equal Protection Clauses that comprise the amendment make it a very valuable support for immigrants and minorities. In the context of the civil war, it liberated the African American slaves and brought equality in the American society, at a conceptual level at least. The fourteenth amendment acted as the foundation upon which the civil rights movement of the mid twentieth century arose. The amendment had been instrumental in deciding the outcomes of such landmark cases as Brown v Board of Education and Roe v Wade (Daniel, p.15). The section 1 of the fourteenth Amendment is a guarantee of citizenship for those who are either born or naturalized in the United States, ensuring that they enjoy rights to life, liberty and property. It also guarantees all such citizens equal protection of the laws. At the time of drafting this piece of legislation, the minority group of reference is African Americans, who were erstwhile held as slaves. But the pattern of immigrants to America in subsequent decades saw a large number of Asians assimilating themselves into the American society. As the complexion of the American demography evolved with time so too the significance and interpretation of the fourteenth amendment. The section 1 states it in no ambiguous terms that children born on the soil of the United States automatically qualify as citizens (unless it is a case of rare exception). This guarantee of citizenship whose legal term is “jus soli” or “right of the territory” is quite advanced for its time. Such privileges did not exist in continental Europe and the rest of the world. So in this aspect the provisions of the fourteenth amendment are quite revolutionary in their nature and the Congress of late 1860’s deserves much credit for its foresight (Williams, p.14). During the decades before the enactment of this important amendment, it was generally accepted in judicial circles that the Bill of Rights was inadequate in certain respects. The Bill of Rights was framed in such a way as to act as a limiting force at the federal level only while giving the states freedom to interpret and alter this broad framework as suited to their regional context. Having said this, the states made very little changes to their constitutions. This is a testimony to the soundness and universality of some of the legislature in early American history. That includes the Fourteenth amendment too (Daniel, p.15). But the fourteenth amendment was not ratified unanimously by any means. There was strong opposition from some quarters of the congress as they believed that it violated Article 5 of the Constitution. Moreover, they argued, that the proposed amendment did not represent all sections of the American society. This was true to an extent and in the end the fourteenth amendment got ratified due mainly to favorable circumstances in the Congress (Rubenfeld, p.1141). The case of Wong Kim Ark v the U.S. government was a corner stone in citizenship rights for native-born children of immigrant parents. Wong was born and raised in the U.S. to Chinese parents. His parents were later to return to China whereas Wong remained in the U.S. Wong worked as a cook in San Francisco. In 1984 he went to visit his parents in China. On his return, he was disallowed entry into the United States. The reason given by the Customs officials was this: “Wong Kim Ark, although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China" (Kuklin 1717). What could have misled the customs officials in stating so could be the Chinese Exclusion Act. This Act prohibited people of the Chinese race from entering United States. Those who are already present were not naturalized to proper citizens. Also, if people from this community were to leave the country even for short term visits, they cannot come back. It might sound highly discriminatory based on an individual’s racial background. But during the first half of the 19th century, such were the norms. The case went to the Supreme Court, which ruled in favor of Wong Kim Ark and against the government. Wong was restored all his original rights including the right to live within the confines of the United States’ soil. This verdict set a precedent for many subsequent citizenship cases during the course of the American history (Kuklin 1717). The Supreme Court jury passed 6-2 in favor of Wong Kim Ark. It asserted that Wong, having been born in the United States soil and his parents having permanent domicile and residence in the country is endowed with all the rights pertaining to a regular citizen, irrespective of the nationality and origin of his parents. It is important to note that the minority opinion was very vocal and explicit in expressing their point of view. It just goes to show the norms and conventions of the period. Wong Kim Ark will always remain a torch bearer for the citizenship rights of future generations of immigrants (Winer, p.420). The history of Asian immigrants in America goes back to the middle of nineteenth century. The Asian immigrants were mainly of Chinese descent and were hired to work in the fields and factories of the American South. It is worthy of note that the Chinese community played a pivotal role in building the transport infrastructure of what was then a developing society. In spite of such vital contributions to the shaping of the American landscape, their legitimacy to citizenship will not come easily. As with all ethnic and racial minorities, the Asian Americans had endured and persisted in order to claim their citizenship (Rubenfeld, p.1156). The majority Caucasians saw Asian workers as a threat to their livelihood and pressured the representatives in the Congress to make it illegal for Asians to enter and work in the United States. Such was the hostility that even some renowned leaders of the time such as Samuel Gompers joined the chorus of protest against the hard-working and earnest Asian workers. Rallies were organized with slogans like “The Chinese Must Go” making the rounds. This compelled the Congress to enact the Chinese Exclusion Act, which in hindsight seems outrageous. The Act would be extended later to encompass all Asians under the Asiatic Barred Zone. This effectively put an end to any hopes of attaining naturalized citizenship for Asians. The Asian community was done great injustice as a result of such policies (Winer, p.412). In the end, the fourteenth amendment would prove to be the savior of immigrant dignity. The “equal protection of the laws” clause was finally interpreted in the right spirit and the Asian community in America got their long due recognition as genuine and legitimate citizens of the land. The verdict of Wong Kim Ark also consolidated the unity among various minority groups. With the support of the fourteenth amendment the case had overturned the 1857 decision in the Dred Scott case, which was another example of blatant discrimination on the grounds of race. In the latter case, it was the blacks who found themselves at the wrong end of the law. And now, the fourteenth amendment would grant both these oppressed communities their rightful place in the American demography (Rubenfeld, p. 1162). It would be incorrect to think that there are no more challenges confronting the Asian American community. With growing concerns about competition from immigrants, some reactionary groups are calling for declaring United States a White Anglo-Saxon Protestant nation. Some subversive literature is being circulated to incite communal tensions. These groups are also organizing propaganda campaigns to oppose affirmative action policies. In this context it is imperative that all Asian Americans be cognizant of how their fundamental rights hang by a delicate thread. The minorities should continue reminding the powers that be of the provisions and the right interpretation of the Fourteenth Amendment. Otherwise, all progress in regard to civil and citizenship rights made in this country will be negated. The birthright citizenship is the primary right that guarantees all other subsequent rights. So it is vital that all citizens and aspirants strive toward safeguarding their basic rights from opportunistic and reactionary politicians (Brodey, p.715). Recent American history had seen an influx of highly skilled Indian professionals. The Indian American community is relatively fortunate in the sense that they did not have to face the turmoil that the Chinese American community was subject to. There are other favorable factors as well. For example, the workers being well versed in English have fewer language problems. Being highly qualified brings with it its own privileges too. More importantly though, having started late, the Indian American community stepped in at an opportune time to avail of the foundation laid by other minorities toward universal basic rights. For example, although the 1917 Barred Zone Act prohibited all Asians from migrating to the U.S., the law did not affect the Indian American community in any substantial way – as their numbers were negligible at this point in time. Having said this, the Indian American community is not devoid of its own challenges. The face their own unique challenges in trying to balance between their traditional culture and the contemporary American society (Cantor 97). It was only as recent as 1965 that the Immigration and Nationality Act was passed that finally provided long-awaited to the Asian American community. The Act essentially lifted quotas on immigration. The result was as predicted. From a negligible one percent of the population in 1970, Asian Americans today make up nearly four percent of the population. They are also the country’s most rapidly growing community and the most affluent. That the community had carved a place for themselves amid wide-spread opposition and prejudice is a testament to their patience and tolerance (Brodey, p.701). The political and military involvement of the United States in various Asian countries had also played a part in shaping the demographic character of the Asian population. Post Second World War, the passing of Luce-Celler Act in 1946 facilitated immigration of workers from India and Philippines. The end of the Vietnam and Korean Wars brought in immigrants from the Southeast Asian region. In either case, the émigré’s were mostly skilled professionals entering on temporary work visas (Post & Reva, p.441). But amid all the human rights progress some darker realities lurk nearby. The legacy of the days of the exclusion laws still continues to this day. The Chinatowns that survive are remnants of those unjust laws. The racial atmosphere back then also gave birth to other laws that forbade Asians from owning property or testifying in court. The plight of the Asian American community is captured by the following words uttered by one from the group: “My friends: in America, Asian is Asian - immigrant or native born. We may define ourselves proudly by ethnicity, but we live in a society that continues to define us by history. Ethnicity is important, but we have blood and geographic ties to a much larger commonality. We may act like we are in separate rooms in a big hotel, but when you come out of them, you’d have to be a blind man to not understand that we’re in this together.” (Cantor, p. 96) The Asians have contributed so much to this nation, but these laws have prevented them from doing more.  The conventional history book will inform the reader neither of the challenges nor of the achievements of this vibrant and versatile community. Works Cited: Cantor, Milton. "No state shall abridge: the Bill of Rights and the Fourteenth Amendment." Library Journal 111 (Sept 15, 1986): 96(2). Daniel, Michael. "Using the Fourteenth Amendment to improve environmental justice.(Special Issue: Environmental Justice)." Human Rights 30.4 (Fall 2003): 15(1). Williams, Pat. "Congress, telemarketers face off on bill. (Privacy for Consumers and Workers Act) (Surveillance hurts productivity, deprives employees of rights)(special section: Direct Marketing)." Advertising Age 64.n45 (Oct 25, 1993): S-14(1). Kuklin, Susan Beverly. "Equality under the Constitution: reclaiming the fourteenth amendment." Library Journal 108 (Sept 1, 1983): 1717(1).  Post, Robert, and Reva B. Siegel. "Equal protection by law: federal antidiscrimination legislation after Morrison and Kimel." Yale Law Journal 110.3 (Dec 2000): 441.  Rubenfeld, Jed. "The anti-antidiscrimination agenda. (of the U.S. Supreme Court)." Yale Law Journal 111.5 (March 2002): 1141(38). Brodey, Jami. "The Supreme Court rejects Fifth and Fourteenth Amendment protection against the forfeiture of an innocent owner's property.(Supreme Court Review)." Journal of Criminal Law and Criminology 87.n3 (Spring 1997): 692-718.  Winer, Anthony S. "Hate crimes, homosexuals, and the Constitution. (Symposium: Stonewall at 25)." Harvard Civil Rights-Civil Liberties Law Review 29.n2 (Summer 1994): 387-438. Read More