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August 6th 2006 • Printer version Citizenship plan attacks Constitution
(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.)
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. 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 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. 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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