Conservative Lawmakers Continue Talk of Undermining Constitution’s Citizenship Clause

August 11, 2010
Congressional conservatives' call for repealing or examining the possibility of undoing the citizenship clause of the 14th Amendment continues to draw sharp scrutiny and even some befuddlement.

In a column for The Washington Post, Harold Meyerson tags the "Republican war on the 14th Amendment" as one against Latino voters who may pose a threat to the GOP.

Meyerson writes:

By proposing to revoke the citizenship of the estimated 4 million U.S.-born children of undocumented immigrants - and, presumably, the children's children and so on down the line - Republicans are calling for more than the creation of a permanent noncitizen caste. They are endeavoring to solve what is probably their most crippling long-term political dilemma: the racial diversification of the electorate. Not to put too fine a point on it, they are trying to preserve their political prospects as a white folks' party in an increasingly multicolored land.

As noted by Meyerson, recently Post columnist E.J. Dionne wondered whether Republicans leading the attacking on the Constitution's clause that guarantees citizenship to all born here "really want to endanger your party's greatest political legacy by turning the 14th Amendment to our Constitution into an excuse of election-year ugliness?"

In a follow-up to his stinging critique of leading Republicans' attacks on the citizenship clause, University of Baltimore School of Law Professor Garrett Epps, notes in another piece for the Atlantic "a powerful movement urging Congress and the courts simply to ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status."

Epps writes:

When (as even its supposed proponents know will happen) the constitutional amendment proposal is dropped after the election, there will remain demand that the courts simply re-interpret the Clause.

As a matter of constitutional interpretation, it ought to be a tough sell. The language of the Clause is pretty sweeping: "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." But the nativist right has begun to explain that the "original intent" of the Clause is different from what it says.

"Originalism" in this context means the use of clever arguments and partial quotations to eradicate the actual text of an argument. I mean no disrespect to the many fine scholars who work hard to recover the "original public understanding" of the Constitution's language. Their work is often provocative and valuable, even if rarely conclusive. But the rhetoric of "original intent" is sometimes misused by very unscholarly figures as a tool to silence questions about far-right constitutional theories.

A clear text, like the Citizenship Clause, can slowly be covered over by barnacles of quibble and questionable historical assertion, until legislators and even judges are convinced that it can't mean what it says. This stealth technique of legal change illustrates a saying of that wise old psychologist, Samuel Johnson: "Reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.''

For additional analysis of the 14th Amendment and the Reconstruction era, see Stanford Law School Professor Pamela Karlan's comments at a 2010 ACS National Convention plenary panel discussion here.

[image via]