Why We Should Keep the (Whole) 14th Amendment

Margaret Thatcher once said, “Europe was created by history. America was created by philosophy.” When a country is united by ideals and not bloodlines, defining citizenship is a unique challenge, one that the United States has grappled with time and time again in its history.

In recent weeks, many of those seeking to be the GOP’s candidate for president have begun talk of getting rid of a constitutional amendment in order to redefine who is a citizen. Frontrunner Donald Trump and others would like to see the United States do away with the Citizenship Clause of the 14th Amendment, which grants citizenship to anybody born within US borders and subject to the the jurisdiction of federal laws (i.e. the baby’s parents are not foreign diplomats or have other formal relationships with foreign governments). Rick Ungar, a contributor for Forbes writes:

It turns out that those who have long enjoyed portraying themselves as the “Guardians of our Constitution”, through strict interpretation of the same, and the proponents of law & order as the bulwark of an orderly society — of course I’m speaking of Republicans — are the very folks who no longer have much use for the Constitution when it fails to meet their desires or live up to their expectations.

 
The argument around the 14th Amendment is largely due to frustration over so called “anchor babies”, a derogatory term for babies born to illegal immigrants in the United States supposedly under the pretense that the child will somehow help the parent gain legal status. It is true that for the past 147 years, all children born within US borders are legal US citizens, regardless of their parent’s legal status.

However, the idea that these babies and US citizens are helping to grant their parents legal status in the United States is a fallacy for which there is no legal backing. In fact, in 2011 there were 5,000 children in state care or foster homes because their parents had been deported. In 2013, Immigrations and Customs Enforcement deported 72,410 people who had at least one child who was a US citizen.

Still, the term “anchor baby” and the vitriolic desire to get rid of the 14th Amendment persist. The amendment was a Reconstruction Amendment, adopted on July 9, 1868, with the goal of providing citizenship to African-Americans who had formerly been slaves with no protection under the law. The Citizenship Clause of the Amendment overruled the Supreme Court’s findings in Dred Scott v. Sanford, which stated that African-Americans, even those who were free, were not American citizens and therefore could not sue in federal court.

When the 14th Amendment was originally debated, there were a few mentions of children born to immigrants on the debate floor. However, in 1868 there was no limit to immigration into the United States, meaning there was no illegal immigration at the time of the amendment’s adoption. In 1898, the Supreme Court cleared this up in United States v. Wong Kim Ark, by ruling that the children of immigrants born in the US are indeed entitled to citizenship.

Since that time, America has continued to grapple with immigrant policy and citizenship laws, but with little exception, those born within the borders of the United States are citizens of our country. While American immigration policy leaves much to be desired, the 14th Amendment has provided continuity and stability to the definition of citizen. Our country’s greatness is derived from the diversity of our citizens and the uniqueness of our history. Paternity tests or another arbitrary way to obtain citizenship would rob future generations of the philosophy and ideology on which this country was founded and continues to grow.

14th Amendment of the United States Constitution, section 1. (National Archives of the United States.)

14th Amendment of the United States Constitution, section 1. (National Archives of the United States.)

Make peace, not war, easier in Congress

The anti-Iran hawks will get to vote against the nuclear deal, without sinking it – The Globalist:

To nix the deal, the Senate must ultimately be able to vote through a resolution against it by a veto-proof majority. And that would require 67 out of the 100 US senators coming out to vote against it (along with 290 U.S. House members).
[…]
As a general principle, of course, this is probably not a strategy to be recommended. The people’s representatives should, after all, be taking meaningful votes on most international agreements.

But for a particularly delicate multilateral negotiation involving war and peace, it is an ideal setup to stack the deck against the former and in favor of the latter.

Remarkably, even the United States Constitution did not set a two-thirds threshold for Congress in making declarations of war – a feature seemingly rendered moot since World War II. A mere majority in each chamber could plunge the country into war.

It has been far too easy for the United States to choose the path of war casually. The structure of the Congressional role on the Iran Deal fortunately makes it much harder in this one instance – while still letting the “bomb bomb bomb” caucus formally register its hawkish preferences.

It might not look it to the rest of the world, but by U.S. political standards in 2015, that’s a win-win.

 
congress-slider

Dear Alabama, don’t make us come back down there.

Approximately two-thirds of Alabama counties are refusing to issue same-sex marriage licenses despite the U.S. Supreme Court confirming the end of the Federal stay on a ruling striking down the state’s constitutional ban on same-sex marriage. This refusal is largely based on the state strength of notorious Christian conservative Roy Moore, who is trying to block the Federal ruling:

[Alabama Supreme Court Chief Justice Roy Moore] told county judges that a federal judge’s decision striking down the state’s ban on same-sex marriage was not binding on state courts and had caused confusion in the state.

Probate Judge Al Booth in Autauga County said his office will take applications for same sex marriages but won’t issue licenses until he gets clarification.

“I have the man who runs this state’s court system telling me not to issue marriage licenses for same-sex couples,” Booth said. “I have the federal judiciary telling me I will issue marriage licenses to same-sex couples.

“I want to uphold my oath. But what law do I follow?” he said. “Which constitution do I uphold?”

 
Uh, here, allow me to help you with that question, your honor. The answer is the U.S. constitution. That’s which thing you uphold when it conflicts with literally any other constitution or law in the United States.

This is based on two very clear principles:
1) The Supremacy Clause of Article VI of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

 
IT DIRECTLY SAYS HOW TO ANSWER THE QUESTION RIGHT THERE, YOUR HONOR. IN THE ORIGINAL TEXT.

Let me repeat it so it’s even clearer: “This Constitution […] shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

2) The U.S. Civil War:
We won it. You lost it. That ended the debate. State sovereignty isn’t equal to Federal sovereignty. The end. Be glad we’re magnanimous enough let you keep your weird Confederate motif on your state flag.

flag-of-alabama

July 16, 2014 – Arsenal For Democracy 92

AFD-logo-470

The Big Ideas for Reforming American Governance episode. Topics: gerrymandering, constitutional amendment conventions, interstate compacts. People: Bill, Nate, Persephone. Produced: July 13, 2014.

Discussion Points:

– How should Congressional districts be drawn?
– Should the states exercise their option to request a national convention to discuss constitutional amendments?
– Can some U.S. policy problems be solved through interstate compacts instead of state-only or Federal-only approaches?

We’re piloting a new concept on this week’s episode for future segments. All three segments this week are examples. Please email us or contact us on social media to let us know what you think.

Part 1 – Gerrymandering:
Part 1 – Gerrymandering – AFD 92
Part 2 – Amendment Convention:
Part 2 – Convention – AFD 92
Part 3 – Sectional Interstate Compacts:
Part 3 – Interstate Compacts – AFD 92

To get one file for the whole episode, we recommend using one of the subscribe links at the bottom of the post.

Related links
Segment 1

– PBS Newshour: Judge rules Fla. Legislature broke laws on congressional district maps
– AFD: Democrats need to focus on state legislatures (or stay doomed)

Segment 2

– AFD: Amending The Constitution: The National Convention Option?
– The Atlantic: “A Real Step to Fix Democracy” by Lawrence Lessig

Segment 3

– Book: “American Nations” by Colin Woodard
– Wikipedia: Interstate compact
– Wikipedia: Compact Clause
– Wikipedia: Driver License Compact

Correction Note: In the third segment, Bill incorrectly listed the states in the Delaware River Basin compact. They are Delaware, Pennsylvania, New Jersey, and New York.

Subscribe

RSS Feed: Arsenal for Democracy Feedburner
iTunes Store Link: “Arsenal for Democracy by Bill Humphrey”

And don’t forget to check out The Digitized Ramblings of an 8-Bit Animal, the video blog of our announcer, Justin.

Fun fact: Colo. constitution puts nuke tests to a vote

In theory, nuclear weapons cannot be tested in the state of Colorado without an affirmative vote by the public in a referendum, according to Article 26 of the State Constitution:

ARTICLE XXVI Nuclear Detonations

Section 1. Nuclear detonations prohibited – exceptions. No nuclear explosive device may be detonated or placed in the ground for the purpose of detonation in this state except in accordance with this article.

Section 2. Election required. Before the emplacement of any nuclear explosive device in the ground in this state, the detonation of that device shall first have been approved by the voters through enactment of an initiated or referred measure authorizing that detonation, such measure having been ordered, proposed, submitted to the voters, and approved as provided in section 1 of article V of this constitution.

Section 3. Certification of indemnification required. Before the detonation or emplacement for the purpose of detonation of any nuclear explosive device, a competent state official or agency designated by the governor shall first have certified that sufficient and secure financial resources exist in the form of applicable insurance, self-insurance, indemnity bonds, indemnification agreements, or otherwise, without utilizing state funds, to compensate in full all parties that might foreseeably suffer damage to person or property from ground motion, ionizing radiation, other pollution, or other hazard attributable to such detonation. Damage is attributable to such detonation without regard to negligence and without regard to any concurrent or intervening cause.

Section 4. Article self-executing. This article shall be in all respects self-executing; but, the general assembly may by law provide for its more effective enforcement and may by law also impose additional restrictions or conditions upon the emplacement or detonation of any nuclear explosive device.

Section 5. Severability. If any provision of this article, or its application in any particular case, is held invalid, the remainder of the article and its application in all other cases shall remain unimpaired.

 
Anti-test sentiment has run high in Nevada and the nearby Mountain West states in the fallout air path (e.g. Utah and Colorado), ever since the heavy testing in the 1950s in the desert outside Las Vegas.

As an example: In September 2008, Utah’s lone Democratic member of Congress, Rep. Jim Matheson, boldly declared out of nowhere — given ongoing (admittedly voluntary) ban on all U.S. testing since 1992, not to mention the growth of metropolitan Las Vegas over 50 years — that he had “become very concerned about recent Congressional actions that may lead to the resumption of nuclear weapons testing at the Nevada Test Site.” He was convinced, at least for campaign purposes, that test resumption in Nevada was imminent and that his re-election was necessary to stop it from spreading radiation across Utah.

So back to Colorado. Would the State Constitutional ban on in-state nuclear testing actually hold up if it came to it (not that there’s a whole lot of likelihood of such a test being conducted, let alone in Utah)? I suspect not. A nuclear test would fall under the purview of the United States military and the commander-in-chief. The U.S. Constitution puts military decisions squarely in the hands of the Federal executive branch apart from official Declarations of War. And it probably violates the so-called “Supremacy Clause”:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

 
Which is interesting because it makes another potential spot in the Colorado State Constitution that is unconstitutional under the U.S. Constitution.

Still, as Mountain West Supremacy Clause crises go, this is no Bundy Ranch standoff. Plus, one imagines it would be so unpopular for the Feds to override the state’s ban without a referendum that they would simply choose another test location rather than have a court showdown over the Supremacy Clause.

operationupshotknotholegrable
Above: 1953 Operation Upshot-Knothole, Grable Test – Nevada Test Site.

Oped | American Unexceptionalism & The Republic

640px-Veen01

The real story of the origins of the U.S. political system. Composite oped from two new essays (here and here) in The Globalist.

You’ve read the story before. A number of loosely aligned, merchant-dominated offshore territories of a European empire begin chafing at their distant monarch and the high taxes he imposed without giving them a reasonable say in their own governance.

Predictably enough, their mounting dissatisfaction is met with an increasingly overbearing response — including military deployments. That strategy is pursued until the provinces reach a breaking point.

They declare themselves free of the faraway king and initiate a rebellion. Not all the territories are persuaded to join. Some prefer to remain loyal to the crown.

The rebellion binds together a small collection of sovereign entities into a union, equipped with a weak, loosely formalized provisional government. Its purpose is to direct the union’s foreign policy and manage the rebellion.

Government after monarchy

Having declared themselves without a king, the newly independent elite must devise a replacement system of government for the continued union.

For a time, they consider the possibility of bringing in another member of the European nobility to serve as king. Such an invitation or election of an outsider as king was common in Europe for centuries, from Poland to Sweden to the Holy Roman Empire. Even the papacy is an elective monarchy.

But eventually the merchant elites and past commanders of the rebellion decide they have been doing fine without a royal. They are now content to continue to strengthen the temporary system as it is.

The exceptional story takes shape

These elite gentlemen look around at other precedents for other self-governing states without kings. Smaller free states — such as Florence and Venice — had previously installed non-hereditary systems of rule by the commercial elites and major families. They had called them “republics,” after the elite-run classical “Roman Republic.”

Elections in such systems are highly indirect and susceptible to manipulation. They are also restricted to a very small number of participants. Essentially, the only voters are members of the propertied, male elite — usually white.

After all, they make no secret of the fact that this exclusionary voting franchise suits the new country’s leaders’ aims anyway. They are not interested in creating a democracy. Rather they are keen to establish a republic insulated from the passions of the mobs.

It is then agreed that under the new union of rebel provinces, each member republic would send delegations to the union’s government, but they will be answerable to their home governments. This further would keep the regular people away from any major levers of power.

Finally, they devise an elaborate system of checks and balances. The ostensible purpose is to preserve the sovereignty of the member republics within the union. The bigger purpose is to prevent the “tyranny” of a central government and an executive. The union will have weak powers of taxation — only enough to mount a common defense of the member republics.

This is, of course, the story of the Republic of the Seven United Provinces in Netherlands and their departure from Spain — about two centuries before the United States constitution was ratified by thirteen former British colonies.

So much for America’s origin story being exceptional, as claimed for so long.

The Dutch precedent was a model, both to be emulated and avoided, for the framers of the U.S. Constitution and those advocating for its adoption. Far from being an “exceptional” idea, the original version of the United States was just the latest iteration of an existing system. It is what came after that that made it exceptional.

Almost before the ink had dried on the U.S. Constitution, the United States and its citizenry — indeed, even its government officials — began adapting the document in other directions the framers had never intended or anticipated.

That is probably for the best, from the world’s perspective, and from the country’s, since rule by a narrow slave-owning elite is not exactly a paragon of excellent governance for the world to follow.
Read more

Amending the Constitution: The National Convention Option?

congress-slider
This new essay by Lawrence Lessig partially answers a question I had recently been pondering. That question was about whether it would be feasible (on paper) to do a constitutional convention through Article V (the one about how to amend the U.S. Constitution). It’s permissible but hasn’t ever been tried. Here’s the relevant part of that provision:

Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

 
Lessig points out that this alternative route, which has never been used, isn’t actually all that special or worrisome. It’s not like a free-for-all that can just junk the whole document. A Constitutional Convention could only be convened by the formal request of 2/3rds of the U.S. states (34 now) and it could only propose amendments to the existing Constitution, which would then be sent back — just like Congressional amendments! — for approval by 3/4ths of the U.S. states (38 now). That last part is always the hardest, and this doesn’t change that.

That’s consistent with the interpretation posted on the U.S. Senate website’s page explaining different parts of the U.S. Constitution:

The Constitution also authorizes a national convention, when two-thirds of the states petition Congress for such a convention, to propose amendments, which would also have to be ratified by three-quarters of the states.

 
So, the national convention route is actually probably even more complicated to get it rolling, in that it requires all the cat-herding of more than 30 states be done twice over (once going in and once coming out), and then once it’s rolling it’s no easier or more dangerous than the usual amendment process.

The advantage it (potentially) has is that it circumvents the need to have members of Congress vote on specific amendments that might affect them or the special interests they favor. It would also be within the much stronger state-level tradition of public interest reform by direct democracy.

Interestingly, Lessig doesn’t address Article V’s provision for allowing states to create special conventions for ratification. He specifically — intentionally I assume — uses the more generic term “states” when discussing the ratification side, although he mentions legislative party control in passing. The likeliest format would be for the legislatures to vote up or down on the convention’s proposed amendments, just as they would for amendments from Congress, but it’s not required.

Let’s take a second look at Article V: Read more