Op-Ed: Repeal the 14th Amendment? No, but the threat is more subtle

Posted Aug 31, 2015 by Paul Wallis
If you remove the rights of citizenship, what rights do Americans have? Could Americans have constitutional protection? Maybe, maybe not. But that’s what it could mean, depending on your interpretation.
The First Amendment guarantees freedoms concerning religion  expression  assembly  and the right to ...
The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition.
I had to think a lot about how to approach this bizarre subject. How do you get a balanced view of a for or against position? Try and explain it, or simply recite the facts, however gaga they may be? I've tried to do both, and believe me, it wasn't easy.
The theory of a repeal just looks ugly. The 14th Amendment is no trivial thing, particularly Section 1, as follows:
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Think about that first sentence — it refers to everybody born in the US, not “illegals,” who aren’t covered. How deranged would you have to be to repeal it? Even the people drafting a repeal would instantly lose a claim to U.S. citizenship.
That won’t happen… But what’s being implied by various GOP candidates as a “fix” for illegal immigration could be worse, and undermine the Amendment in some ways. Meanwhile, it won't work. How could it? People smugglers don’t pay any attention to legislation. They pay almost as little attention to it as Wall Street or street gangs. The whole idea is so naive on so many levels as to be unbelievable.
A big howl has been raised online about this idea, with good reason. It’s being called absurd, while various GOP candidates, notably Huckabee, are leaping on the bandwagon.
No amount of informed disbelief seems to be making an impact. Apparently, if it gets publicity, whatever it is, a few candidates will move in and take ownership. The fact of its utter stupidity isn’t an issue.
The possibilities of an actual repeal are grotesque:
Would every newborn baby have to apply for citizenship?
How would you qualify yourself as a US citizen?
Huff Post writer Terry Connelly called it “The ultimate in voter suppression”. It would be. How would you qualify as a voter?
The possibilities of tampering with the Amendment aren’t a lot more encouraging. If it was amended to target “illegals,” it’d be a lawyer’s paradise for years to come. However a person claiming citizenship was targeted by a revision of the Amendment, the likely outcome would be a range of legal claims, counterclaims, and possibly legal decisions on a par with Roe vs Wade. The number of possible grey areas could be gigantic, depending on how you interpret “birthright.”
As usual, the GOP isn’t listening to the public or anyone else, however well qualified. This is the usual policy-by-polarization approach, attacking immigrants on the theory that Americans hate immigrants, so therefore it’s a vote winner. A flock of right wingers have hastened to agree with Trump’s basic position.
It is difficult to imagine any form of constitutional amendment which could do more damage. Even the First Amendment, bless its many hearts, is based on the idea that there is some group of people called Americans who have the right of free speech.
What if there aren’t? Eliminate birthright, and you eliminate a primary claim to citizenship, and you could theoretically target any group of people with this method. What if you can’t define how Americans become American citizens? What if Americans and people living in America aren’t “subject to the jurisdiction of the United States” as a result of suddenly becoming non-existent, not covered by the constitution?
Trump has said that the 14th Amendment is “unconstitutional.” (How does part of the constitution become unconstitutional?) Trump also says “anchor babies born in the U.S.” are a loophole in the Amendment, singling out Mexicans while still saying that if you’re born in the US, you’re a citizen.
At this rate, the result could be lousy law, hopelessly confused citizenship status, and any number of issues regarding state and federal jurisdictions. A state could decide you’re not a citizen, where federal law could say that you are.
Undocumented citizens may not be able to claim citizenship, but that’s based on interpretations of jurisdiction which say Congress can regulate citizenship based on the theory of “consent” between the U.S., states and the intending citizens. The states can’t interfere with the rights of citizens, but can with undocumented people.
The problem is this — not that a stupid argument is being carried on regarding the 14th Amendment, but that it’s even possible to have this argument at all. In the past, hideous possibilities were considered impossible. Everyone knows how those impossibilities happened. Someone pushed an agenda, and they happened, from Wall Street going free after 2008 to the madness of people who don’t pay tax saying they want legislation to reduce taxes. Congress has been the tool of madness, and the madness is now spreading to the constitution.
The 14th Amendment won’t be repealed, but consider the mindset which decides to attack the constitution, rather than the actual issues. Nothing good can come from such thinking. Expect more verbiage, but also expect the impossible to become a policy position.
An observation — this how nations fall to bits. Roman citizens, like Americans, had rights which basically deteriorated to lip service as emperors simply ignored them. A legal system which can’t even define citizenship would be much the same.