Birthright Citizenship

Despite rhetoric from some Tea Party leaders that says the Obama administration is running rough shod over the founding document, the country is not in “danger of flipping the Constitution on its head,” writes Richard Stengel in an extensive piece for Time.

Stengel, in “One Document, Under Siege," continues:

Their view [Tea Party faithful] of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: ‘The Constitution was written explicitly for one purpose – to restrain the federal government.’ Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.

Stengel’s article takes a look at some of the more high-profile constitutional debates, such as those focusing on Congress’s power to regulate commerce, in the context of the landmark health care reform law, and the 14th Amendment’s birthright citizenship clause.

In the concluding graphs, Stengel touches on the debate over constitutional interpretation, writing:

The Constitution is silent much of the time. And that’s a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

See Stengel’s entire article here.

Accompanying the article is a new Time poll, showing that 54 percent of respondents said they agreed that the government should interpret the Constitution “based on changes in society,” as opposed to interpreting “exactly what’s spelled out in the Constitution.” Forty-one percent of respondents said the government should “following exactly what’s spelled out in the Constitution ….”

Regarding the 14th Amendment’s clause, which states that all persons born in the U.S. are citizens, 62 percent of respondents said the provision should not be revised.

“ ‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislatively history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.