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“Some Americans Should Not Have Equal Rights?”: The Racist Roots Of The GOP’s Favorite New Immigration Plan

The year 1866 was an alarming one for xenophobes: Congress passed the Civil Rights Act, declaring “all persons born in the United States and not subject to any foreign power…to be citizens of the United States.” Though explicitly intended to grant citizenship to African-Americans, who’d been denied it by the Supreme Court’s ruling in the 1857 Dred Scott case, wouldn’t the law also “have the effect of naturalizing the children of Chinese and Gypsies born in this country?” wondered Pennsylvania Senator Edgar Cowan. “Undoubtedly,” responded Senator Lyman Trumbull of Illinois. When President Andrew Johnson vetoed the act, he too raised the specter of the Chinese and “the people called Gypsies.”

Congress overrode the veto, and went on to enshrine the principle of birthright citizenship in the Constitution’s 14th Amendment. Needless to say, fears about the children of the gypsies proved unfounded. Yet the idea that people with certain types of parents should be denied citizenship—and the associated rights—persisted. Late in the nineteenth century the government tried to withhold citizenship from the children of Chinese immigrants, but was rebuffed by the Supreme Court. Native Americans weren’t considered citizens until 1924. These days the target is Latino immigrants and their children. And thanks to Donald Trump, the nativist argument against birthright citizenship has moved from a sideline item to a centerpiece in the Republican primary.

In a set of immigration policies released Sunday, Trump called for an end to birthright citizenship, which he described as “the biggest magnet for illegal immigration.” Trump’s invocation of the fictitious “anchor baby” phenomenon isn’t particularly original. But what’s striking is that his implausible call for reinterpreting or rescinding the 14th Amendment has been taken up by so many of his competitors in the Republican field, including Scott Walker, Ted Cruz, Lindsey Graham, Bobby Jindal, Rick Santorum, Ben Carson, and Rand Paul. Chris Christie said recently that birthright citizenship should be “reexamined.” The much shorter list of those not in favor includes John Kasich (who previously advocated for revoking birthright citizenship), Jeb Bush, and Marco Rubio, who stated that he is “open to exploring ways of not allowing people who are coming here deliberately for that purpose to acquire citizenship.”

The issue of birthright citizenship resurfaces every so often in Congress, but it’s never gotten much traction. Most recently Louisiana Senator David Vitter warned of the “exploding phenomenon” of “birth tourism,” and in March proposed to limit citizenship to those who have at least one parent with a green card or who’ve served in the military. Though bids like Vitter’s are more demagogic than actionable, some US-born children with undocumented parents already face hurdles related to their citizenship rights. Texas, for instance, recently began refusing to issue birth certificates to parents who use a photo ID from the Mexican Consulate as their only form of identification.

Kelefa Sanneh points out that, bluster aside, Trump is actually forcing a substantive policy debate. The substance is extreme: Walker, for instance, once supported comprehensive reform legislation that including labor rights and a pathway to legal status; now he is “absolutely” in favor of ending birthright citizenship. (So are 63 percent of Republicans, according to a 2010 Fox News poll.) While the GOP was once wondering whether Romney’s promotion of “self deportation” went too far, now candidates are pandering to the base’s racial anxieties with talk of undoing what historian Eric Foner characterizes as one of the Republican Party’s own “historic achievements.”

The irony is that doing so would dramatically increase the number of undocumented people living in the United States. (As has the militarization of the border.) Denying birthright citizenship to children with undocumented parents would bring the population of unauthorized people to as many as 24 million by 2050, according to the Migration Policy Institute. The result, according to MPI, would be the creation of “an underclass of unauthorized immigrants who, through no fault of their own, would be forced to live in the margins of US society.” In other words, undermining the 14th Amendment won’t solve the (nonexistent) problem of “birth tourism.” It would, however, do what the denial of citizenship has done since the era of Dred Scott: strip civil rights from a racialized group, facilitating their exploitation.

 

By: Zoe Carpenter, The Nation, August 19, 2015

August 23, 2015 Posted by | 14th Amendment, Birthright Citizenship, GOP Presidential Candidates | , , , , , , , | 1 Comment

“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?

In controversial cases, is the role of jurist to inflame controversy, or quell it?

In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.

The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.

Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.

Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.

Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.

But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.

But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.

He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”

In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”

Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.

Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”

It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.

The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.

And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”

Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.

Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.

I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.

To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.

Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.

And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.

But it is Justice Alito’s parting jab which resonates the most.  Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”  This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.

“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.”  Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.

These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight.  They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.

Were the targets of such acts only gays and lesbians, it would be bad enough.  But these four dissents have encouraged disrespect of the Supreme Court itself.  Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.

 

By: Jay Michaelson, The Daily Beast, June 27, 2015

June 30, 2015 Posted by | 14th Amendment, Marriage Equality, U. S. Supreme Court | , , , , , , , , | 1 Comment

“GOP Lawmakers Take Aim At Constitutional Principle”: Ending Birthright Citizenship Has Been Added To The Far-Right’s To-Do List

The 14th Amendment to the Constitution doesn’t leave much in the way of wiggle room: the rights of American citizenship are given to “all persons born or naturalized in the United States.” It’s a principle generally known as “birthright citizenship,” and after its enactment following the Civil War, the Supreme Court has protected the tenet many times.

But as Republican politics moved sharply to the right, and anti-immigration sentiments within the GOP became more extreme, the party’s “constitutional conservatives” decided the principle, championed by Republicans nearly 150 years ago, needs to go. Shortly after the “Tea Party” gains in 2010, ending birthright citizenship was added to the far-right’s to-do list.

And yesterday, as Dana Milbank explained, a congressional panel actually considered a plan to scrap the existing constitutional provision.

A House Judiciary subcommittee took up the question Wednesday afternoon, prompted by legislation sponsored by Rep. Steve King (R-Iowa) and 22 other lawmakers that, after nearly 150 years, would end automatic citizenship.

The 14th Amendment, King told the panel, “did not contemplate that anyone who would sneak into the United States and have a baby would have automatic citizenship conferred on them.” Added King, “I’d suggest it’s our job here in this Congress to decide who will be citizens, not someone in a foreign country that can sneak into the United States and have a baby and then go home with the birth certificate.”

It’s no small task to undo a principle, enshrined in the Constitution and upheld by the Supreme Court, that defines the United States as a nation of immigrants. It’s particularly audacious that House Republicans would undo a century and a half of precedent without amending the Constitution but merely by passing a law to reinterpret the 14th Amendment’s wording in a way that will stop the scourge of “anchor babies” and “birth tourism.”

That’s no small detail. In the American system of government, if federal lawmakers want to alter constitutional law, they have to actually amend the Constitution. But King and his cohorts have a different idea: they intend to simply pass a regular ol’ law voiding the unambiguous language of the 14th Amendment.

Remember, these are the same folks who are convinced President Obama is a radical who ignores constitutional principles he doesn’t like.

To bolster his case, House Republicans invited a few “experts” to tell lawmakers why the plan to end birthright citizenship is a great idea – one of whom has a deeply troubled history on issues related to race.

But to dismiss the entire debate as a pet project of a clownish congressman would be a mistake. Sen. David Vitter (R-La.), for example, is also sponsoring a bill to end birthright citizenship, calling it a constitutional “loophole” he hopes to fill.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) hasn’t signed on to King’s bill, but he considers the constitutional principle an open question. “The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from settled,” Goodlatte said at the hearing. “In any event, we must still determine if it is the right policy for America today.”

Even at the national level, Sen. Rand Paul (R-Ky.), a GOP presidential candidate, recently sat down with a right-wing conspiracy-theory website, WorldNetDaily, where he voiced opposition to birthright citizenship.

WND: Do you still want to end birthright citizenship?

PAUL: Yeah, I think if you have a broken system like we have now, you can’t let just people –  you know, I’ve always agreed with Milton Freedman who said you can’t have open borders and a welfare state. You can’t become a magnet for the world and let everybody come in here, have children, and then they all become citizens. So I still do agree with that.

In 2011, Vitter introduced a measure to undo birthright citizenship, and the proposal picked up four Senate Republican co-sponsors. Rand Paul was one of the four.

It’s a bad sign when the debate shifts from whether or not to pass comprehensive immigration reform to whether or not Congress wants to nullify part of the 14th Amendment.

 

By: Steve Benen, The Maddow Blog, April 30, 2015

May 1, 2015 Posted by | 14th Amendment, Citizenship, U. S. Constitution | , , , , , , , | 3 Comments

   

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