August 6, 2006
Garrett Epps: Oregon Republican platform buys into extremist interpretation of the 14th Amendment
Citizenship plan attacks Constitution
By Garrett Epps
For The Register-Guard
Published: Sunday, August 6, 2006
Even in an era known for bad constitutional ideas, the Oregon Republican Party’s latest brainstorm stands as one of the worst proposals since somebody in Troy said, “Let’s bring that cute wooden horse inside the walls!” The new party platform puts the state GOP squarely on record as opposing human equality, and strikes at the very heart of American constitutional democracy. The proposal surfaced at last weekend’s Platform Convention in Eugene. Delegates adopted a plank urging that American-born children of undocumented aliens be deprived of American citizenship.
The Republicans, who often express reverence for unborn children, want to punish children who have never lived in any other country or broken any law. They have bought into an extremist interpretation of the 14th Amendment that restricts the Citizenship Clause to the children of former slaves. The problem with this interpretation is not just that it’s mean-spirited and dangerous. The problem is that it’s made up out of whole cloth.
I spent the last four years researching the adoption of the 14th Amendment. As surely as I know my own name, I can say that the Citizenship Clause was designed and understood to provide protection for the children of all people in this country, regardless of their legal status. In 1866, when the 39th Congress met in Washington, D.C., for the first time since the South surrendered, the nation was in political crisis. In place of Abraham Lincoln, the White House was occupied by Andrew Johnson, himself both a Southerner and a former slave-owner. With Johnson’s encouragement, the former Confederate states had formed new, all-white governments and begun preparing to send representatives to Congress. Even though it had been defeated in battle, the South confidently expected that it would set up something much like slavery. And Johnson had no objection – he was hoping to be elected in 1868 as the South’s candidate.
Under the Constitution of 1787, the states, not the federal government, controlled citizenship. Even though the slaves were freed, the Southern states did not regard African Americans as citizens – and the U.S. Supreme Court, in the racist Dred Scott decision, had agreed, holding in 1857 that black Americans could never be citizens.
The framers of the 14th Amendment knew perfectly well what they were doing. In the debates over the Citizenship Clause, they made clear that its passage would make citizens not only of black Americans but of the children of German and Irish immigrants – and, indeed, of the closest thing 19th century America had to “illegal immigrants,” Chinese laborers in California, Mexicans in the American Southwest, and even Gypsies.
The former supporters of the Confederacy opposed the amendment. They made liberal use of anti-immigrant rhetoric – they sounded, in fact, almost as extreme as today’s Republicans in the U.S. House of Representatives. But Congress rejected the idea of second-class status for immigrant children. The amendment was adopted by two-thirds of Congress, and ratified by three-quarters of the states.
Oregon has had its own struggles with the concept of equality. When the 14th Amendment emerged from Congress, this state was one of the first to ratify it. But some voters revolted afterward at the idea of black Americans entering Oregon’s white paradise. In 1868, a new majority tried vainly to “rescind” the state’s ratification.
Fortunately, that action had no legal effect. And of course, the current Republican Party’s attempt to punch a hole in the Constitution has no real chance of immediate success.
But direct attacks on the Constitution are always worth fighting. James Madison, the father of the Constitution, once wrote that “it is proper to take alarm at the first experiment on our liberties.” The experiment the Oregon GOP proposes would cut the heart out of our Constitution, and leave us all poorer and less free.