Saturday, September 12, 2015

Fours and Fourteenths

Syncopated Politics is four years old. 

It has one hidden, but remarkable asset—a very smart readership. Every week, I get emails with tips about or invitations to a conference or lecture or online event.  Others have links to articles, or suggestions for a topic.  Some flat-out challenge me—sometimes on partisan grounds, but more often because of a possible flaw in the underlying logic of a piece.

A reader made an interesting observation after last week’s post about “birthright citizenship” and the 14th Amendment.  The 14th has multiple sections, but the relevant (and now controversial) portion is in Section I,  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.”  

For more than a century, the general understanding of that clause is what appears to be the plain language of it:  with some very narrow exceptions, if you are born here, no matter how or when your parents got here, you are a citizen.  Children of diplomats, who were clearly subject to a foreign jurisdiction, were not, and Native Americans (who had Tribal Citizenship) were not.   

But our reader, who is nonetheless sympathetic to the traditional interpretation, found himself agreeing with the opinion piece in National Review by John Eastman that I cited.  Eastman claimed that the controlling language in the 14th relating to “not subject to the jurisdiction…” had been misinterpreted for generations—what it really meant was that only a citizen was truly subject to the jurisdiction of United States laws in all respects.  An immigrant—and particularly an illegal immigrant, wasn’t, and could never be.  Derivatively, the American-born child of that immigrant would not be entitled to “birthright citizenship” since that’s not what the Amendment intended.  Thus, accepted logic about the 14th was simply wrong—and all that was needed was greater understanding.

That sounded like a lawyer’s argument—and I don’t mean that with praise.  Eastman was doing something particularly pernicious.  He was skipping past the discussion of whether birthright citizenship was a good thing (upon which there can be and is a healthy and heated debate) and turning it into a procedural one.  For lack of a better phrase, Eastman claimed to have found the loophole.

There is a fundamental difference in the status of mere legislation, like ACA, and the Constitution and its Amendments.  On day one of a new Republican regime in 2017, identical ACA-repeal bills could be approved in the House and Senate, and sent it to President Trump for signature, and ACA would be effectively over, but for the winding down.  That might not be wise, but it could be done.  Altering an Amendment is an entirely different matter--it is deliberately insulated from abrupt change by Congress by mandating a 2/3 vote of both Houses, and then having 38 of 50 states ratify it. 

What Eastman was saying, in effect, was that this particular Amendment was different and could be treated like a simple bit of legislation—effectively fungible at the whim of the majority.  I found Eastman’s argument to be clever, and convenient, sophistry.  But, the email made me question myself—not just whether I was on firm ground intellectually, but how I arrived at the conclusion in the first place.   Was I just being like Eastman—wanting a particular result and tailoring my methods to achieve a particular conclusion?

Upon review, it became clear to me that I was sloppy in my response, probably because I found Eastman to be so disingenuous.  There is a profoundly disturbing trend in American politics today—you can really see it in the Kim Davis situation—where elected officials and aspirants for higher office simply reject laws they don’t agree with.  They don’t bother to go through the process of changing them—they just reject them as either unconstitutional (in their view) or not in keeping with a “higher law” or “God’s Law.”   Eastman, I felt, was the silken glove over the iron fist of rejectionism and nullification.

But I hadn’t really made a credible effort to rebut him.  So, with apologies, and thanks to my reader, I want to approach it differently.  This is going to be a lawyer’s argument (albeit a lawyer with a yen for history)--and argument on process, rather than the merits of birthright citizenship.

Start at the beginning.  Birthright citizenship (except for slaves) was here from the inception of the nation.  It is rooted in English common law “a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection” and was carried over after the Revolution.  It almost had to be, since we were a nation of immigrants—literally—in 1776.  There were a series of naturalization laws, the last in 1802—which set forth some fairly restrictive rules for the granting of citizenship to new immigrants—but they did not exclude from birthright citizenship the children of those immigrants.

That brought us to 1857, and the Dred Scott decision.  Justice Taney changed everything—but for only one group of people.  He would be the last word--Taney wanted to finally end any discussion about Africans, regardless of how they arrived in the United States, wherever they lived, and wherever their masters took them, and regardless of their present legal status—Africans “had no rights that the white man need respect.”  They could never be citizens—not in one year, not in one thousand.

Taney’s monumental misjudgment is not in dispute.  Four years later, in one of the great ironies of history, the then 83 year old Chief administered the Oath of Office to Abraham Lincoln.  Shortly thereafter, in Lincoln’s words, “the war came” and, ultimately, was won.  The slaves were free.  Now, what to do with them?  What was their legal status?

The 14th Amendment decided it.  Taney’s ruling was dead—and note also that those of African descent were not only now citizens of the United States, but also and of the State wherein they reside.  It isn’t all that hard to conceive of states (and not just in the South) refusing to recognize state citizenship.  The plain language of the 14th precluded that, and, to go a step further, it codified the existing law on birthright citizenship-and did absolutely nothing to diminish those rights.

To think otherwise turns your back on history.  It is inconceivable that the drafters of the 14th Amendment in any way meant to diminish the rights of any person (and particularly of European ancestry) previously born in the United States, regardless of how he or she got there.  Imagine a result where the child of slaves, and born into slavery, suddenly had greater legal rights than, say, General George Meade (the winner of Gettysburg) who was himself born in Spain.

It couldn’t have happened that way.  The relevant language of 14th had to be expansive, not limiting.  As the historian C. Van Woodward pointed out in 1964 in American Counterpoint, Slavery and Racism in the North-South Dialog, deep, entrenched animus towards blacks existed everywhere during this period.  He quotes Massachusetts Senator Henry Wilson, “There is today not a square mile in the United States where the advocacy of the equal rights of those colored men has not been in the past and is not now unpopular.”

And, if the drafters of the 14th Amendment had wanted to make distinctions on the citizenship status of people, of any age, then presently residing in the United States, they could have said so.  The opportunity was there to be more restrictive, and they didn't take it.  We can infer the reasons: These were smart politicians--smart enough to know that further dividing up the electorate was not the best way to get a desired result.

Eastman is just wrong—and I feel that more strongly than when I wrote the first piece. The framers of the 14th Amendment were not the intellectual forbearers of his anti-birthright citizenship movement, and we have not misunderstood their intent or their language.  They proposed an Amendment they thought they could get adopted.  That is the one we have.  We can debate it, we can do everything possible to prevent illegal immigration so as to reduce new birthright citizenship, but we cannot do an end run around the Constitution by coming up with a fresh “interpretation.” 

We are still a nation of laws, and we ought to follow them.  Don’t like the 14th?  Don't look for a clever loophole.  Amend it.

Once again, thanks to every reader—Syncopated Politics is work, but it is also pleasure, and you help make it so.

September 12, 2015

Michael Liss (Moderate Moderator)

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