Call For Review of 14th Amendment Endangers American Electorate

08/12/2010 11:45 am ET | Updated May 25, 2011

I wrote a piece in March about the strategy the GOP has taken under Mitch McConnell's leadership. I pointed out that McConnell's strategy was to plant seeds of doubt about the democratic process by insinuating that the government was not to be trusted and that it was somehow involved in secret "death panels" and/or other secretive activities. McConnell et al is at it again, this time planting seeds of doubt about the country's very electorate itself.

The GOP and the 14th Amendment

The latest target of the GOP's ire is the 14th Amendment. Both McConnell of the Senate and John Boehner of the House, the highest-ranking GOP members of the Congress, have called for a review of the Amendment while addressing the issue of illegal immigration, using epithets such as "anchor babies" and "birth tourism." Others who have also expressed their support for a review, if not an outright repeal, include John McCain of AZ, Lindsey Graham of SC, Jeff Sessions of AL, Rand Paul of KY, Sharon Angle of NV, Mike Lee of UT, Kelly Ayotte of NH, and John Boozeman of AR, among others.

The ridiculous contradiction notwithstanding - "Back to the Constitution! Repeal the 14th Amendment!" - this call has at the same time stirred raw emotions in some bona fide conservative politicos, including David Broder, a conservative-leaning journalist ("if this is an example of what it would mean to have more Republicans on Capitol Hill, watch out"), Sophia Nelson, a GOP strategist ("Keep the GOP hands off 14th Amendment"), and Mark McKinnon, a former George W. Bush advisor ("The 14th Amendment is a great legacy of the Republican Party.")

During the same week, while the 14th Amendment was being assailed by the GOP officials, the Honorable Vaughn Walker, the Chief Judge of United States District Court for the Northern District of California, cited the 14th Amendment in his ruling against Prop. 8 of California and struck down the gay marriage ban as unconstitutional.

He stated that singling out one group for a ban is unconstitutional ("Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment"). Gay rights activists have praised Walker for his judicious interpretation of the Constitution, including the said Amendment, while social conservatives have decried the ruling as "judicial activism" and have even insinuated that Walker ruled thus because he himself may be gay.

What Is It About This Amendment That Gets Us All Excited? History of the 14th Amendment

In our most simplistic understanding, the 14th Amendment gives everyone born on American soil American citizenship regardless of the parental status in the US. Certainly, this is the context within which McConnell and Boehner have called for a review. In this regard, this call for repeal of the 14th Amendment can be perceived as the outward manifestation of the longstanding frustration with the problem of illegal immigration. Those feeling frustrated with the issue assume that illegal immigrants use their children, pejoratively and odiously dubbed "anchor babies," as a tool with which to gain some sort of legal status in the US.

But the 14th Amendment is much more than about birthright. The 14th Amendment was adopted in 1868 in the aftermath of the American Civil War (hence, a "great Republican legacy" though Abraham Lincoln himself did not live to see it enacted). Many Southerners still call the American Civil War the "War Between the States" or the "Northern Aggression" as they were taught in schools.

The Citizenship clause, the Due Process Clause, and the Equal Protection Clause contained within Section 1 of the Amendment define who is an American citizen and what rights are to be afforded to this citizen: citizenship by birth and naturalization; due process in the court of law; and equal protection under the law by state for that citizen. The rest of the Amendment deals with how to treat participants in insurrections against the Union and clears the federal government of the public debt stemming from fighting insurrections. The very last clause of the Amendment gives the Congress the power to enforce the law.

The adoption of the 14th Amendment was necessary because former Confederate states started to pass the so-called "Black Codes" in an attempt to control and curb the movement, employment, and full legal representation of blacks. A constitutional amendment was the only way to guarantee the protection and welfare of the newly freed slaves. Therefore, while the 13th Amendment freed the slaves, the 14th Amendment prescribed that: states provide all of their citizens regardless of color and race "life, liberty, or property, [] due process of law;" that they not "deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court also used the 14th Amendment in its unanimous ruling in 1954 in Brown vs. Board of Education and found that "separate educational facilities are inherently unequal." This ruling struck down the segregation laws in many states, which had already been enacted throughout the South well before the Plessy vs. Ferguson case of 1896 (Henry Plessy, who was one-eighth black, was arrested on purpose while riding in the white section of the rail in New Orleans in order to challenge the segregation laws on trains. He was found guilty on the grounds that, while states were required to provide equal protection, individuals were not) and had spread northward along with the black population.

And in 1964, ten years after this landmark ruling, the Congress passed the Civil Rights Act with about a 70-30 vote. The Act passed, predictably, with heavy opposition from the lawmakers from the South, both Republican and Democratic. In the end, no single Southern Republican voted for the Act while only 7% (7 out of 94) of Southern Democratic representatives and 5% (1 out of 20) of Southern Democratic Senators voted for it. The enforcement of this law in the years to follow took a heavy emotional and human toll. Who among us can forget the indelible images from Selma, AL, Little Rock, AR, Ole Miss, MS, and Memphis, TN?

Looking back at the history of the 14th Amendment now, it is impossible to understand the rights we enjoy today as Americans without it. It has been the guiding principle in guaranteeing equal rights for all Americans for almost a century and a half. It has been the guiding principle in ensuring that no one American or no one American group was above or below others. In the eye of the law, all Americans are truly equal.

The Lesser Electorate

What the GOP's call for its review aims to do is to cast doubt on how 'American' the children of illegal immigrants can be. Framed within history, the attempt to even question the legitimacy of the children born to illegal immigrants aims to establish that part of the electorate as less than legitimate. They are not American citizens because their parents are not. Their American citizenship is illegitimate.

Thus by calling into question the legitimacy of that group's citizenship, the GOP insinuates that some groups of the electorate are less equal than others. Here we begin to see why the 14th Amendment would be in the way. Not only does it grant citizenship to that undesirable, illegitimate group, it also protects these citizens and others who are less equal in the court of law. So what is the GOP to do? Get rid of it!

What then would the repeal of the 14th Amendment do? Without it, states would be free to legislate different laws for different groups of people. Without the 14th Amendment, some Americans would be more equal than others. Without the 14th Amendment, some groups would have more and others would have fewer rights as it was adopted precisely because some states started to curb certain groups' rights. The very American ideal of inclusive politics becomes politics of exclusion and selective rights.

The very idea of equal rights for all Americans, a genuinely American idea, would be impossible without this Amendment. The most insidious consequence, however, would be that, without it, the very legitimacy of the electorate would start to erode and endanger the very notion of who we are as Americans. It would introduce a scale according to which one's or one group's American-ness would be judged.

This call for a review of the 14th Amendment is not only un-American, it treads on dangerous paths: a path back to pre-1868 slavery, a path back to the period of darkness in American history, a path back to legally sanctioned human scale.