Saturday, August 7, 2010

The 14th Amendment Under Fire

When I was first taught the Constitution in elementary school, we learned to remember the 3 "Reconstruction Amendments" this way: the 13th Amendment freed the slaves; the 14th made them citizens; and the 15th guaranteed their right to vote. At an age-appropriate level of simplification, that both enabled us to remember them and satisfactorily focused on the original intent of those amendments, which were also the first constitutional amendments to include the since then standard clause empowering Congress to enforce the amendment by appropriate legislation.

Since its ratification in 1868, the 14th Amendment has been used by our imperial judiciary to do all sorts of mischief not necessarily intended by its authors. Thus, corporations have been deemed as "persons" entitled to the rights thereof. And much (but, however illogically, not all) of the Bill of Rights has been "selectively incorporated" to bind states as well. Thus, despite the obvious fact that the 1st Amendment was intended to prevent the federal government from establishing a national religion, leaving the states free to maintain established churches if they wished to do so, the 14th Amendment has been used to distort the 1st Amendment into a force for imposing a radical secularist ideology not just on the federal government but also on the states.

Be that as it may, it remains clear that, whatever else it may mean or be made to mean, the 14th Amendment is about guaranteeing citizenship and its rights and benefits. In order to guarantee those rights and benefits to ex-slaves in the former Confederate States, the Amendment undid the infamous Dred Scott Decision - Dred Scot v. Sanford (1857), in some respects, the Roe v. Wade of the 19th century - and attached citizenship automatically to fact of being born in the United States.

To the best of my knowledge, that has been one of the fundamental, taken-for-granted, givens of American society ever since. Now, all of sudden, in the new nativist, anti-immigrant climate that certain extremist elements have been creating in this country, even the 14th Amendment to the Constitution of the United States is coming under attack.

Amending the Constitution is a very difficult task - as it was meant to be and as it should be. That is why there have been so relatively few amendments in the last 221 years. To repeal the 14th Amendment or any part of it would require a considerable consensus in society - certainly not likely in this instance. That being the case, one wonders why this has even been brought up at all.

It has been obvious for some time that the demographic evolution of American society and the electorate will sooner or later likely marginalize an anti-immigrant political party or any political party foolish enough to put all its electoral eggs in the nativist basket. Is this latest initiative perhaps a recognition of this fact and a last-ditch, albeit quixotic, effort to reverse the inevitable evolution of the electorate?

Quixotic it may be, but it is no less toxic to our political culture and to the fundamental values of American history and society. Whatever else America has been about, it has always been about being (as President Ronald Reagan rightly reminded us) a "city on a hill," whose light beckons to people from all over the world.

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