Sunday, February 13, 2011

The Right Is Wrong...Again

(Page 1 of the Fourteenth Amendment)
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...
From Section 1 of the Fourteenth Amendment to the Constitution of the United States
The latest gambit from conservatives eager to start gutting the Fourteenth Amendment and its unambiguous elevation of the federal government over the states with guarantees of equal protection and due process is, of course, to deny citizenship to American-born children of undocumented workers.

The argument goes that the clear intent of the Fourteenth Amendment is to secure citizenship rights for newly freed slaves, and that it was never meant to apply to anyone else. The more erudite conservatives might add that the Fourteenth Amendment overturned the Dred Scott Decision and that it was also aimed at curbing southern abuses of the Thirteenth Amendment, which abolished slavery. Therefore, it's a minor matter to edit the amendment to exclude any U.S.-born child of illegal immigrants from the rights and responsibilities of American citizenship.

However, there are some problems with the conservative position. In the first place, the Supreme Court has already held (United States v. Wong Kim Ark) that the citizenship clause does apply to anyone born in the United States and may not be interpreted as limited to former slaves. Moreover, Wong specifically holds that Congress may not act to override the Fourteenth Amendment, which renders bills as those introduced by Rep. Nathan Deal (R-GA) as so much grandstanding. (For the record, Deal's legislation bears such august titles as the "Citizenship Reform Act," and the "Birthright Citizenship Act.")

Then there's the nature of the conservative position itself, which unsurprisingly reveals the right as either intellectually incoherent, cynical opportunists, or both.

Conservatives oppose the Affordable Care Act as being unconstitutional, in part because the Constitution is silent on the question of health care. (No doubt, as there was no such concept in 1789.) In the case of the ACA, conservatives hew to a strict originalist line that permits determination of constitutionality only on the basis of the text of the document.

Unfortunately for conservatives, Section 1 of the Fourteenth Amendment is silent on the matter of intent. It doesn't use the words "slave" or "slavery," much less refer to the Dred Scott Decision or the Thirteenth Amendment. If you want to overturn the ACA on the basis of a strict textual reading, then you can't suddenly claim to divine framer intent behind Section 1 and hope to maintain any notion of integrity. (Unless of course you are a cynical opportunist and don't give a rat's ass about intellectual honesty as long as what you say suits your purpose.)

Much as conservatives won't admit it, the Fourteenth Amendment is clearer on citizenship by birthright than the Second is on gun ownership. Language can't be much plainer than this:
All persons born or naturalized in the United States...are citizens of the United States...
"All persons," not "All persons except." Following the conservative line of strict adherence to the text, one can quite plausibly assert that if the framers had meant "former slaves," the amendment would specify "former slaves." As it doesn't, the door is left open for additional possibilities. For example, perhaps the country paid a debt to the foreign-born children of immigrant soldiers who died fighting for the Union. Or perhaps the framers looked ahead as well as back and wanted to ease the path to citizenship for the children of the immigrants they knew would be necessary to ignite the great American economic engine untethered by the Civil War. These possibilities can't be refuted by anyone who relies on a textual reading (other than, of course, by the usual ad hominem attacks on America-hating libtards.) This is the direction you take when you read intent into arguably the most direct sentence in the entire Constitution.

When it comes to the Fourteenth Amendment, conservatives are hoist on their own petard -- a position that must seem familiar to them by now...

Can anyone think of a greater or equal sense of dislocation than going from sipping a margarita in Makawao (Maui) to standing in the freezing rain at Sea-Tac Airport a few hours later?...

The lyrics, Ringo, the lyrics! You did write them, after all!...

9 comments:

injaynesworld said...

I think you pretty much nailed it right here: (Unless of course you are a cynical opportunist and don't give a rat's ass about intellectual honesty as long as what you say suits your purpose.)

Old white people scared shitless of becoming a minority and being treated as shabbily as they've treated people of color.

Makes me freakin' crazy! Great piece, as usual. I'll be sharing it.

K. said...

What scares me the most about this is that citizenship is just the beginning. If they get that changed, they'll go after the next sentence in Section 1 as well, which prohibits states from overriding constitutional rights and which guarantees due process and equal protection to any person (not citizen).

TaraDharma said...

This says it all, K: (Unless of course you are a cynical opportunist and don't give a rat's ass about intellectual honesty as long as what you say suits your purpose.)

And no, I cannot begin to imagine the horror of landing back in rainy PNW after a stay in Hawaii. There oughta be a constitutional amendment!!!

K. said...

Now you're talking! (Unless of course...)

Roy said...

Of course, the ultimate conservative goal is just to ditch that pesky Constitution entirely; all that liberty and rights nonsense gets in the way of their self-aggrandizing agenda!

mommapolitico said...

Hi K.,
As always, you point out the RWNJ's hypocrisy beautifully: one minute they argue things are unconstitutional, the next, they want to abolish provisions of said document. Makes me crazy.

It's a slippery slope, fiddling around with something that is the bedrock of our nation. We've always taken in the tired, the poor, the huddled masses - it's what makes America strong, the melting pot of the entire world. But you take older folks, longing for a different time, and you scare them with a minority group...sadly, that's pretty American, too, if you look back in our history.
Fantastic arguments, all, K. Hope you don't mind if I tweet it along.

K. said...

Roy, I think conservatives would like nothing better than to get rid of all of Section 1. They've never accepted it, and it's the basis of their hatred for liberal "activist" judges.

MP, tweet away! The 14th Amendment is, or should be, as sacred as the 1st. We shouldn't change a comma in it. Conservative southerners (like Deal) who want to peck away it are downright obscene.

Darlene said...

Hypocrisy is the thing that I dislike the most about Republicans. They want a smaller government until is interferes with their misguided prejudices. It's okay with them to have government in your bedroom or telling you who can and cannot marry.

They want the Constitution to justify their narrow minded beliefs and twist and turn it on it's side to do so.

K. said...

Amen. The conservative powers that be want a small government for them -- one that acts on their behalf -- and an intrusive one for the rest of us.