Sunday, September 5, 2010

Revisiting Repeal- the 14th Amendment

The recent furor over the 14th amendment caught pretty much everybody by surprise, and most commentators wrote it of as a nativist push to expunge Birthright citizenship from the Constitution.  This explanation certainly has some truth to it, and it fits the overarching narrative of the Tea Party as a disorganized band lacking the discipline to stick to realistic policy demands. The repeal-the14th push was given voice by far-right politicians who have been attempting to please the energized right wing.

But I suspect there might be something more important at play.  Maybe I'm still reeling from paranoia after reading the New Yorker (subscription) article profiling the Koch Brothers network of influence.  In the wake of that article, I would find it hard to believe that any 'spontaneous' outpouring of support from Tea Party activists and paid organizers is anything other than a coordinated effort... at something.

The 14th Amendment was a repudiation of the Tawney Court's Dred Scott opinion 60 U.S. 393 (1857) which was premised upon the notion that citizenship was determined by race.  The first clause of section 1 of the 14th Amendment redefined the nature of citizenship of the United States, inscribing state citizenship as a necessary condition of national citizenship.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Where the 13th Amendment had failed in abolishing de facto slavery in the South, the framers of the 14th were adamant that it would succeed.  The Tawney Court attempted to create a second class of human- one whom was not entitled to natural rights, much less the political rights and protections due to citizens.

John Bingham sought to ensure that no state would infringe upon the "wise and beneficent guarantees of political rights to the citizens of the United States, as such, and of natural rights to all persons, whether citizens or strangers." (via Akhil Amar's The Bill of Rights).  The nativist urge is to deny the personhood of aliens, and this is exactly the impulse which the framers of the 14th proscribed.  There are political rights enjoyed to citizens, and individual rights which are fundamental.

The entirety of the 14th Amendment rests on the primacy of United States citizenship over state citizenship.  This re-imagining of the federal system allowed the United States government to protect its citizens against any incursion on their liberties from State actors.  The founding generation of Americans feared that an isolated, distant government would become tyrannical; the generation which survived the Civil War knew that oppression was much more likely to come from local governments.  Consequently even for non-citizens, the 14th Amendment enshrined the federal government as the backstop guarantor of individual rights.  This is why I suspect that the repeal-the-14th organizers are trying to excise something much more fundamental than birthright citizenship from the Constitution.

Jan Brewer's SB 1070, insofar as it disregards Bill of Rights protections against unreasonable search and seizure, is an attack on the 14th amendment which extended the enforcement of the Bill of Rights against the several states along with the federal government.  The requirement upon law enforcement officials to stop (seize) persons see Terry v. Ohio 392 U.S. 1 (1968) in order to determine their immigration status is predicted to have "potentially serious Fourth Amendment problems" see U.S. v Arizona Case C:10-cv-014-13-SRB Doc 87 supra 6.  The 14th Amendment's due process clause enforces the Fourth Amendment protections against the states.  Under attack is the entirety of the 14th amendment, which includes the protections for all persons against all government infringement of core values.

The payoff for the Koch brothers and Koch Industries is not the diminishment of personal liberty per se.  I suspect that they have their eyes on Section 5 of the 14th Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This is the only grant of federal power ever amended to the Constitution.  Rolling it back as well as the legislation enacted on its behalf (e.g. the Voting Rights Act) provides an alluring target for far-right wingers seeking momentum against what they see as expansive federal power.  Though attempting to repeal the 14th via amendment would be futile, the Tea Party organizing efforts provide political incentive to further undermine all government power.

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