Some commentators note that the amendment's drafters wanted chiefly to protect slaves and their kin, not allow Mexicans to run a vast birthing conspiracy. Maybe so. Even if that were the case, there are other amendments in the Constitution -- namely the second one -- whose original purpose (to protect Americans from a federal army) has long been subsumed to other more modern political agendas. Justice Scalia admitted as much in Heller v. D.C., when he concluded his majority opinion by saying:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
But what did the 14th Amendment's drafters want when they codified birthright citizenship? Concentrating on the slave issue is surely too narrow. Akhil Reed Amar, a widely respected (though, I admit, liberal) constitutional scholar, explained on a recent visit to the Colbert Report that the amendment had much grander aspirations. It was nothing less than the "textual embodiment" of Thomas Jefferson's quaint notion that "all men are created equal." No matter who our parents are, he went on to say, or their particular identity markers, we are born equal. (Also, Linda Chavez explained the historical basis for birthright citizenship much better than I can in a recent editorial in the WSJ. See here.)
Quoting Jefferson in such fashion makes me sound a bit too high-minded and simplistic. But I'll add that the notion Mexican immigrants think an American child is a fast-track to citizenship and safety for themselves is ludicrous. For one thing, the child can only apply for a green card once s/he turns 18, and even then, there are financial and other application requirements that must be met. If at any time ICE decides to deport you before these proceedings are concluded, having an American child is not much of a defense. (Between 1999 and 2009, in fact, more than 100,000 parents of American-born children were deported. See here.)
On a more depressing note: there are days when I stop and think about my differences with conservatives and almost conclude they aren't that vast. (Lowering the higher marginal tax rates doesn't inspire that much political passion for me, though I do oppose it.) But then, the right's brand of identity politics emerges and I quickly run off to the other side of the political spectrum. I'm not calling anyone racist. This is a perfectly reasonable debate to be had (though its context is rather ugly). I'm just with the other side on this question -- and, quite frankly, on most involving race.
I don't think drawing parallels to the Second Amendment works.
ReplyDeleteScalia is saying that the Court cannot simply change the definition of the 2nd Amendment because some people think its outmoded. The court has no role in updating laws.
The people who wish to change the 14th amendment are wanting to do so through a constitutional amendment.
They aren't comparable situations.
As for the overall argument about changing the law on birthright citizenship...
I'm leery of changing the Constitution without really thinking through the ramifications of it. But I also don't share the immediate reaction of some commentators who think the idea is explicitely intolerant or racist.
In 2008, 8% of all births in the US were childen of illegal immigrants. That sort of number (and the social obligations it engenders) seems problematic, even though I'm sure most of those families are good, hardworking people. (It's somewhat perverse that we incentivize illegals to have kids so they can stay, isn't it?).
The 14th amendment was written for good reason, in a different context. We should never allow a court change the meaning of it. But it seems reasonable to me for people to try and convince their fellow citizens to support a Constitutional Amendment.
That is the whole reason for the process, afterall.
(Briefly, re: Mr. Amar's point: I kinda think that's applying post-facto significance to it. I don't doubt that that sentiment was at least part of the impetus, but without the circumstance of rectifying the situation of the slaves, I don't think the amendment ever would've been proposed.)
Oh, re: the numbers of people who were deported irrespective of having citizen children.
ReplyDeleteI would be interested in seeing the numbers who were not deported because they have children (or at least were given special consideration becaues of that fact). Afterall, deportation proceedings rarely rely on one singular consideration based on my understanding (in other words, there isn't a blanket policy; it's context dependent).
I don't actually know the numbers, but it is correct to say that illegals with children who are citizens have a BETTER chance of being allowed to stay, right? That's been my understanding anyway. As such, it may not be guarenteed, but it's still incentivized.
PS. Lest I get a snarky remark, I use capitals in these posts because there isn't a way to use italics for emphasis. It's not that I'm trying to be obnoxious. ("You don't have to try for that!" -- the peanut gallery).
Re: your second post about the statistics -- without seeing the numbers, I don't see how I can conclude illegal immigrants with citizen-children have a better chance of being allowed to stay. Just don't know. My basic understanding of the current immigration system is that it is largely arbitrary and follows the logic of bureaucracy more than any rationality we would recognize.
ReplyDeleteAs for my point on the Second Amendment: yes, you're correct on Scalia's view. But I think my larger argument still stands: The Second Amendment was proposed out of a specific fear -- to keep the federal army in check -- that has largely subsided in modern times (as Scalia concedes). But you do not see much discussion about repealing it or changing it through the amendment process to better reflect the modern interpretation. (Instead, as I've long argued, you just have conservative jurists who simply ignore the "well-regulated militia" clause of the amendment. But that's a different, long, tiresome discussion we've already had at least 5 times these past two years.)
In other words: if the 14th Amendment's clause on citizenship seems no longer suited to modern times, and people want to change it, why not apply the same logic to the 2nd, whose founding logic seems mostly ignored these days?
Finally, as to your point on Amar: You are being unduly narrow when you say had the slave issue not arisen, the Amendment would not have been proposed. Yes, that's no doubt correct, but it went to the heart of the abolitionist (and later, Radical Republican) argument. The slave issue, in other words, existed as a harsh reminder of what happens when the American polity ignores the words that set forth its independence movement -- all men are created equal.
Re: the 2nd Amendment.
ReplyDeleteI'm actually all for people proposing an amendment to the 2nd Amendment (forgive the redundancy). I wouldn't support its passage, but I think it would be great for our country if that was the route gun-opponents took.
It's always been my biggest problem with the arguments in favor of major gun restrictions (and other causes): don't use the courts as an end-around the sentiments of the public/text of the Constitution.
If they could convince the majorities needed to pass a Constitutional Amendment, then more power to them. That's the point of the amendment process: to update the Constitution when it fails to meet the standards we want. I just think they haven't tried because they know they'd lose.
In general though, I'm all about people following the process to amend the Constitution. It's a very democratic notion.
It's debatable if those in favor of gun restrictions are in fact acting against the spirit of the constitutional amendment, or even public sentiment. (I think there are solid majorities in urban areas, for instance, that support handgun bans or similarly restrictive resolutions.)
ReplyDeleteI'm not even sure how democratic amending the Constitution is, really. For one thing, recognizing the Constitution itself is, in fact, a very un-democratic notion, because it cedes legislative control to the acts and decisions of a generation in 1789. This is my biggest problem with originalism -- the notion that we, in the modern world, have to work under values set forth in the late-18th century, which, needless to say, don't inspire much confidence in me.
I think Jefferson -- or Madison? -- made this point in his famous quote that the earth belongs to the living. I'm not arguing against the need for a written Constitution, and surely not against one as beautifully elegant and concise as ours. But I think we have to admit it's an un-democratic impulse, especially given the onerous requisites needed to amend the Constitution.
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ReplyDeleteIf I may be allowed to offer an opinion on this issue, I think it's important not to confuse direct democracy with representative democracy, which I think is being done here. Remember, our system -- in spirit and by structure -- isn't the former.
ReplyDeleteProblems with direct democracy are most felt in states like Colorado and California, where the prejudices of the governed are cast by resolution.
Jefferson also felt that every generation needed a bloody revolution...which is at least partially why people called him a Jacobin (or rather, that's why such accusations weren't entirely out of the blue).
ReplyDeleteBut he also realized the error of such sentiments after the Reign of Terror became apparent in France. After that, he did accept the idea that there are certain foundational truths/institutions that need to be preserved throughout generations.