August 28, 2010

The 14th can go the way of the Other 10

I should mention it's gotten easier to write these posts since I settled into this new relaxed style. Maybe, as B.B. King would have it, the thrill is gone, but so is the feverish tension of all that Hope & Change that had me and a lot of other people so fired up for a while. As the original resident of the Pond had it, a single truth is enough for the Seeker, and the single truth apparent now, to my way of thinking, is that the political system doesn't work anymore. How it got into this deplorable state is a complicated question, even for me, and don't forget: I have a degree in political science. That's right, I'm a scientist, I hold a Bachelor of Science from what was once a publicly funded university (prior to Prop 13), although admittedly now it's a wholly owned subsidiary of British Petroleum, which owns the science department, and the Haas Family, which owns the business school.

So in this Zen-like state of Acceptance, it is easier to admit the truth of what's going on these days on the Fruited Plain, specifically, not too much good. The whole country is sort of up for grabs, the final devolutionary step, perhaps, in the collapse of citizenship that I think underlies the decadence of public governance in the USA.

Take, for example, the "debate" over the 14th Amendment. Should it be "repealed?" Those are the terms in which the discussion happens in this stupid country of ours. Alberto Gonzales, legal hack who once headed up the Justice Department, says don't repeal the 14th Amendment, but he's Hispanic, so what did you expect. Sarah Palin is okay with repealing the 14th Amendment. Yet who even knows what the 14th Amendment is? Most experienced lawyers would never even think about the "birthright" clause when thinking about the 14th. The 14th Amendment was the landmark amendment of the Reconstruction Era (1868) which made certain that the Due Process Clause of the 5th Amendment, as well as the new Equal Protection Clause of the 14th, was fully applicable to state and local governments. Without the 14th such epochal decisions as Brown vs Board of Education would not have worked. Jim Crow would still be in effect, perhaps. Rand Paul's wet dream of sending a black family to the next, blacks-only motel would be okay with the feds, so long as Kentucky law allowed it.

So most lawyers don't want to see the "14th Amendment" repealed. What the politicos/ talk shows are yelling about is the "birthright" clause, which grants citizenship to anyone who manages to be born within U.S. borders and become "subject to its jurisdiction."

"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.[3]"

To be fair, this is a reasonable question to ask: the original purpose of the Birthright Clause was to make certain that certain members of the American public who were literally here from the beginning, African-American slaves, would not be denied citizenship after the Emancipation Proclamation because of the awful (dreadful, you could say) Dred Scott decision, which denied not only citizenship but essentially humanity to freed slaves. The slaves were not "illegal immigrants." They did not sneak into the USA to drop an "anchor baby." They were originally brought here on slave ships, those who survived the voyages. So, as with many generalized provisions in the Constitution, the Birthright Clause of the 14th found a new and not-really-intended use in the case of illegal immigrants. A series of Supreme Court decisions, however, have made it clear that birthright citizenship is available to anyone born here, no matter how that birth happened to happen.

Settled law, right? An amendment (really, what Sarah is talking about, even though she doesn't know it, is an amendment to an amendment) takes forever under the Constitution, so let's move along to the next thing. And I guarantee you, practically, that that is not going to happen. There's another way in America these days. It began with Bush and has come to be settled policy with Obama: if you don't like a civil liberty or Constitutional provision, if it's inconvenient, you simply ignore it. Few things are more dangerous than such lawlessness, of course, it's the gateway to tyranny and mob rule, but...Here We Are! The 4th Amendment and FISA law got in the way of Bush's illegal spying program. No problem, no one is going to do anything about it. Military commissions violated the 5th (and 14th!) amendments regarding due process. So what? Waterboarding and other forms of torture violate the 8th Amendment. Who cares? The use of "faith-based" delivery systems within the federal government violate the First Amendment's Establishment Clause. Wake me when you've got something important to say. Habeas corpus?- the aforementioned Alberto said it's not even in the Constitution; the Constitution just says you can't repeal it. Hey, if sophistry like that works (and Obama is using it in Bagram prison in Afghanistan), tell me something that won't. How 'bout the right to assassinate American citizens anywhere in the world if they're a "security risk?" Sounds like an end run around the 5th and 14th Amendments' Due Process Clause, doesn't it? Do they care in Saudi Arabia? Then why should we?

Saudi Arabia, by the way, is one of those countries which denies birthright citizenship. In so many ways (capital punishment, use of torture), countries such as Kuwait, Iran and Saudi Arabia are our political cousins. Anyway, the future is pretty clear. As things fall apart, what's going to happen is that we will move from a system of presumption of citizenship to one where citizenship is a matter of affirmative proof. The Arizona law is a big step in this direction, and overwhelmingly Americans favor this approach. Then too the Supreme Court could get a new case and simply reverse the Wong case of 1898 (and others following) and say that the 14th Amendment was never meant to apply to illegal immigrants, which might not be a bad argument, after all.

One way or another, through Constitutional nullification, mob rule, ad hoc decisions, the days of birthright citizenship are numbered, if I know my fellow yahoos, and I think I do. It's a fine mess you've made here, Oliver.

1 comment:

  1. Machipongo John12:37 PM

    So what do we do now? The 2012 election is already bought and paid for by the Koch Bros. What then? To the barricades? Should I get my old M-1 out of the closet? Or is it time to go into a total Zen coma---ommmmmmadapadimiommmmmmmm.....