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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

(Garrett Epps teaches constitutional law at the University of Oregon School of Law. His book on the 14th Amendment, Democracy Reborn, has just been published by Henry Holt and Company.)

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 Southern states now wrote “black codes” that controlled and regimented every aspect of black Southerners’ lives. Blacks would not be permitted to vote, to serve on juries or even to testify in court against white people. Black children would be taken from their parents and “apprenticed” to white families. Blacks convicted of crimes would be “leased” as slave labor to the highest bidder. In the words of the Dred Scott decision, they would have “no rights that a white man was bound to respect.”

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.  

Today, the 14th Amendment is probably the most important part of the Constitution, at least as far as ordinary citizens’ rights are concerned. Without its Due Process Clause, state governments would not be bound by the restrictions of the Bill of Rights. Without its Equal Protection Clause, states would be free to discriminate among their own residents, and to exclude minorities from full equality. Without it, America would not be what we call today a democracy.
Today as much as in the 19th century, some of our fellow Americans have a problem with equality. Local majorities often think life would be better if they could proscribe, exclude and subordinate those who are different from them. In the segregated South, it was black Americans who were rendered unequal by law; today, in much of the country, many citizens believe that undocumented immigrants have “no rights a white man is bound to respect.” Anti-immigration zealots are eager to visit undocumented parents’ alleged sins on the innocent heads of their native-born children – young people who have committed no crime and who have as much right to be here as Congressmen Tom Tancredo or Jim Sensenbrenner.
The 14th Amendment stands in their way. If they can move it aside, our democracy is in trouble. Once inequality by law takes hold, history shows us that it will deepen and spread. The crusade against the native children of immigrants has as its logical end the re-creation of a caste system like Southern slavery – hereditary, hierarchical, immutable and lifelong. The new subclass of native noncitizens will not be called slaves – but like antebellum blacks, they will have no rights the favored are bound to respect. Instead of a free Republic of equal citizens, America will once again be a land of masters and servants. 

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.

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