Sunday, August 30, 2015

Those Birthright Blues

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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