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The Assault on the Fourteenth Amendment

The Fourteenth Amendment has come under concerted attack in recent days. Some conservatives have talked about repealing the Citizenship Clause, which says that “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.”

The Fourteenth Amendment, as I explained earlier this week, passed in 1868 in response to the Black Codes, which limited the rights of blacks in parts of the south to own property or enter contracts. The Citizenship Clause ensured that blacks who had been born in the U.S.—whether they were born free or born slaves—would be citizens and entitled to the same rights as everyone else. Because who exactly is “subject to the jurisdiction” of the U.S. is not entirely clear, the courts have never definitively ruled that everyone born in the country is necessarily a citizen, although they have typically interpreted the Citizenship Clause as saying that they are.

The Fourteenth Amendment has been at the heart of the recent legal controversies over same-sex marriage and immigration. As Sandip Roy argues in Salon, Judge Vaughn Walker’s decision to overturn California’s Proposition 8 banning same-sex marriage and Judge Susan Bolton’s decision to issue a preliminary injunction against Arizona’s law, raise similar issues. At stake in each case is what the equal protection of the law means and who is entitled to that protection. Although Judge Bolton’s primarily based her on the Federal government’s authority over immigration, she also pointed out the dangers of “increasing the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up by this requirement.”

The current assault on the Fourteenth Amendment is a response to the fact that it is generally understood to grant citizenship any child of illegal immigrants that is born in the U.S. Conservatives call such children “anchor babies,” suggesting that immigrants come to the U.S. with the idea of having children so that it will be hard to deport them. Both Sen. Minority Leader Mitch McConnell (R-KY) and House Minority Leader John Boehner (R-OH) have said that an amendment eliminating birthright citizenship is something we should consider. “People come here to have babies. They come here to drop a child,” Sen. Lindsey Graham (R-SC) explained to Greta van Susteren on Fox News.  “That shouldn’t be the case. That attracts people here for all the wrong reasons.”

Other conservatives have come out against altering what is arguably one of the Republican Party’s greatest achievements. Former Republican Governor of Arkansas Mike Huckabee said, “You do not punish a child for something the parent did.” And former Bush advisor Michael Gerson pointed out that if the Fourteenth Amendment were changed, two children born in the same hospital wouldn’t start their lives as equals. Children in America, he wrote, “acquire their rights not because of their parentage or their bloodline or the permission of politicians but because they are born in the United States. The radical, humane vision of the 14th Amendment can be put another way: no child born in America can be judged unworthy by John Boehner, because each is his equal.”

The truth is that an amendment eliminating birthright citizenship isn’t likely to pass, and the talk of changing the Constitution is just so much posturing. As David Weigel says, “Republican political rhetoric is littered with promises of new amendments about the flag, gay marriage, abortion, and other wedge issues.” Graham, McConnell, and Boehner are simply saying they would like to address the immigration issue, knowing full well they won’t be held accountable for their inability to follow through with the difficult task of amending the Constitution. Their rhetorical attack on the Fourteenth Amendment raises the stakes on immigration, and gives them a talking point for the fall midterm elections. But it does so by directing our anger and outrage at the wrong target—newborn babies.


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