What does it take to be an American?
Until recently, I was positive I was. My passport says so. I have a pronounced preference for Westerns
in movies, and beef, to the strains of Aaron Copland’s Rodeo, for dinner. For further support, I checked the USCIS website,
and I’m a winner. American by
birth.
Yet, I may find myself fighting for my identity. Because there are influential voices in the
Republican Party that want to put an end to “birthright citizenship” by either
ignoring, altering the meaning of, or repealing outright the 14th
Amendment. Some would even like to
do that retroactively.
For years, these types of ideas have floated around the
fringes and would pop up occasionally in a state legislature, when some obscure
local pol would introduce a bill that would go nowhere. It migrated upwards to Washington, like some
low-grade fever, through the generous efforts of people like Congressman Steve
King, but never got any real traction.
But now, it’s primary season, and the big kahuna, Donald
Trump, has said that “very smart lawyers” tell him that the 14th
Amendment is not all that it’s cracked up to be. And, where the Great White moves, the pilot
fish follow to feed. Among the nibblers include
Rand Paul (who actually proposed a Constitutional Amendment several years ago),
Rick Santorum, Ben Carson, Lindsay Graham, Chris Christie, Bobby Jindal (wrap
your head around that one—his parents arrived here in 1971 and four months later
celebrated the birth of the future Leader of the Free World) and Ted Cruz (perhaps, although
he doesn’t want to be pinned down.)
OK, it’s that time of year where the pandering becomes so
reflexive that even the preternaturally cautious Jeb Bush first lets loose with
the pejorative “anchor baby” and then tries to sidestep that by saying he
wasn’t referring to Mexicans—it was those darned Asians that he’s concerned
about. And Scott Walker was also a “repeal and don’t replace” guy until he got
a few calls from people who write large checks for his waning campaign. He’s backed off of that and is now talking
about a second fence—across the northern border with Canada. Should Walker’s poll numbers drop further, I’m
going to be looking for moats and crocodiles.
What is really going on here on the GOP side is the conflict
between proposing rational solutions to the immigration problem—which we need,
and most voters of all stripes want—and maximizing poll numbers from a primary
electorate that is growing more aggressively nativist—and frustrated.
The pressure is immense.
It’s not just the people trawling for votes—outside the circle of the
eternally ambitious, there is also an entire cottage industry of 14th
Amendment deniers, amenders, Congressional fixers, repealers, and retroactive
repealers. These include the usual
hard-right entertainers like Ann Coulter and Rush, as well those more cerebral
in nature. The sophisticates at National
Review have run a series of well-groomed anti-14th opinion pieces. In one, the conservative law professor John
Eastman makes the argument that the 14th is one of those sadly
misunderstood Amendments that just need the clarification of a clear mind (like
his) and a Congress ready to act. “So,
truth be told, the 14th Amendment does not need to be repealed in order to fix
the problem of birthright citizenship for the children of illegal immigrants.
It just needs to be understood and applied correctly.”
Eastman’s arguments should make you pause on at least two
levels. To start with, he’s splitting hairs, relying on an idiosyncratic
interpretation of the phrase “subject to the jurisdiction of” that has no direct
support in either Supreme Court decisions or in 150 years of actual practice. But Eastman would simply be another conservative scholar who
likes to be provocative if he didn’t step up with the second leg of his
argument: there is no need to go through a formal amendment process—you just
need a Congress to help us all “understand and apply it.”
That is a hand grenade.
Remember, we aren’t talking about a regulatory ruling or even a statute
that was enacted by Congress and can be repealed or modified by Congress. It is an Amendment to the
Constitution—clearly covered by Article V, which requires a 2/3 vote of both
the House and Senate, and the ratification by at least 38 states.
Accept the “misunderstood and misapplied” premise, then you
must also accept the proposition that any Constitutional Clause and any
Amendment are subject to exactly the same type of ad hoc cutting and pasting—by a simple majority in Congress
with a like-minded President.
That would be the ultimate Pandora’s Box, where not only
control of the government, but of the very meaning of the Constitution, would
shuttle back and forth between whomever was in charge. Could a conservative
Congress and Administration make explicit what Justice Thomas says is the
correct interpretation of the 1st Amendment—that while the Federal
government may not establish a religion, the individual states may? Could a liberal one do the same with the 2nd
Amendment—interpret the “well ordered militia” clause to be the underpinning of
substantial restrictions on the purely private ownership of guns? Go through every right set forth in the
Constitution and Amendments and ask yourself how many of them you will be
willing to permit a temporary, possibly narrow, political majority to simply
disregard? The answer has to be none.
Despite all that, I think that Eastman, and Trump, and all
those who follow in Trump’s wake, are doing us a tremendous service—if we are
willing to take heed of it. What they
are really saying is the that a problem exists (even Tom Friedman, no-one’s
definition of a conservative, recently pointed out that if you can’t control
your borders, you can’t control your sovereignty) and they can fix it—by breaking
or reinterpreting the rules.
This desire to episodically ignore the rules is both
profoundly American (we are rule-breakers) and profoundly un-American, in that
it flies into the teeth of our most hallowed principles. Moving from King to democracy was a fundamental reordering. The Constitution reflected an end of any
final, un-appealable power. Individual rights are not granted by a central
authority—rather, they are inherent and inalienable in the person, who then
grant, by contract (the Constitution) some to the state and local and Federal
governments.
Yet, there is only so much blame we can heap on overeager conservatives ready to slip the Constitutional bit. Democrats are equally
guilty, because they have failed to propose comprehensive viable
alternatives. My hunch is that this is
for both practical and political reasons.
Politically, it’s to their long-term benefit to watch Republicans show a
potty-mouth to fast-growing non-white populations. People remember insults for a very long
time. But practically, I think they don’t
really have a clue what to do.
Some of Obama’s Executive Actions on this are at least a starting point—for
negotiation, not final resolution, but if there is a fleshed-out approach to doing
a better job of securing the borders while providing a generous immigration
policy and a path to legalization (perhaps with deferred access to entitlement
programs) I have yet to see it.
So, we end up arguing about the 14th, and the ridiculous
assumption that if you just end birthright citizenship, millions of anchor-baby
parents will flee with their small weighted offspring and we can go back to
Ozzie and Harriet days, with real Americans picking fruit, tending gardens, and
working in meatpacking and rendering plants.
Double down, repeal it retroactively, and you could have an exodus of
generations.
Would I have to follow?
Actually, I’m pretty confident the answer is no. Retroactive repeal wouldn’t be that much of a
problem for me—ironically, my grandparents are my ace in the hole. They were all immigrants who were naturalized—before
they had children. That made my parents
citizens, and, by extension, me.
Which gives me a leg up on at least three Republican
candidates for President—Jindal, Marco Rubio (parents naturalized four years
after he was born) and Ted Cruz (born abroad to an American mother and a Cuban
father.)
Eat your hearts out, guys….
August 30, 2015
Michael Liss (Moderate Moderator)
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