Monday, December 20, 2010

What Constitution?

[Note: I've been dreadfully ill since returning to California from New Mexico. I hope this episode won't require hospitalization, but if things don't start showing signs of improvement soon, I just may have to buckle under, and where that will lead... I dread to think.]

"And so it begins," as they say.

The Fourteenth Amendment is the one that will be under immediate and relentless assault as soon as the New Model Congress and State Legislatures assemble in January. The rightists and reactionaries have been quite up front about what they have in mind: restricting "birthright citizenship" to those born to citizens.

The opening wedge, of course, will come via Arizona's bizarre rightist brown-people hater, one Robert Pence, author of the execrable SB 1070 that made it a crime to be unable to produce proof of citizenship or legal residency on demand of an Officer of the Law.

The assault on the Bill of Rights (except for the Sacred Second) has been underway since the Founding, and the limitations and restrictions on those "rights" (so-called) have been expanded to such an extent that most are now subject to the interpretation of whomever wishes to assert authority over someone else.

It's that bad.

Anyway, the 14th Amendment has stuck in the craws of many reactionary rightists over the years because it does two impermissible things: it extends citizenship to everyone born on US soil (who is subject to US jurisdiction) regardless of the legal status of their parents, and it:

Protects rights against state infringements, defines citizenship, prohibits states from interfering with privileges and immunities, requires due process and equal protection, punishes states for denying vote, and disqualifies Confederate officials and debts

Every bit of it is hated and despised by the reactionary rightists, and I note with interest that many of the Libertarians are still obsessing on Julian and Bradley Manning and what's to become of WikiLeaks.

The more important consideration for most Americans when it comes down to it is what is to become of the 14th Amendment. If the rightists succeed in weakening it -- which looks like a possibility in these difficult times -- it will open a door they have long wished to have access to:

  • Restricting citizenship rights in general.

  • This has long been a goal, not only of rightists and reactionaries as a class but of a significant number of Libertarians as well. They all believe that only the "right kind" of person should be granted the privileges of citizenship, and that doesn't include the masses. They are too ignorant, too lazy, too bone stupid to deserve such privileges. Besides, most of them wouldn't miss their citizenship rights if they were taken away. Most Americans don't use them anyway.

    Here's a quick squib from TIME Magazine from 1924 which will give you a little taste of how deeply resented the 14th Amendment has been since its ratification in 1868:

    In New Orleans, a suit has been filed in the Federal District Court to oust Walter L. Cohen, Collector of Customs of the Port of New Orleans. Mr. Cohen is a Negro, and the petition, filed by Edwin H. Both of Washington, D. C, and Carl E. McHenry of New Orleans, alleges that he obtained his appointment in the U. S. revenue service by subscribing to an oath that he was a citizen of the U. S. when, as a matter of fact, he was "of African descent and, therefore, incapable of becoming a citizen of the United States." The basis of this contention is that the 14th Amendment to the Constitution was never legally ratified by three fourths of the states. It was submitted, it is charged, by a Congress from which the Southern States were excluded. Also, it is said, the six Southern states which ratified it did so "under compulsion" and New Jersey and others withdrew their ratification.

    The validity of the 14th Amendment has frequently been discussed as an academic question. This suit, however, marks the first time it has ever been before the courts. Said The New York Tribune: ". . . an engaging attempt at nothing less than the juristic revision of the Civil War. . . . The confidence of these two Southern gentlemen in the Supreme Court is monumental. Not even Mr. LaFollette ever charged that it could remake history."

    Read more:,9171,769107,00.html#ixzz18fdH6VsB

    Indeed. The whole point of Jim Crow laws in the South was to cancel the 14th Amendment, and it was largely successful for nearly 100 years. But Jim Crow style workarounds to the 14th Amendment were instituted throughout most of the rest of the country as well, the whole point being to limit and restrict the civil rights of citizenship to the "right kind of people."

    We've only lived a few decades under a profoundly different regime, which takes the 14th literally, and given the reactionary and rightist make up of today's Supreme Court, we're liable to go back to the way things used to be. The 14th cannot be struck down, but just as legislatures and courts did during the Jim Crow era, it can be relatively easily circumvented. It's not just about citizenship, either. It's the whole ugly notion of "equal protection under the law."

    They can't rewrite it, and they can't very well repeal it, but they will try every work around and subversion that creeps into their rotten little minds until the 14th is effectively inoperative once again.

    That's the game plan.

    Civil Liberties Fanatics, where are you?

    It will be interesting to see what positions and actions they take on this issue come January.

    My prediction: they'll find something else that is so much more important.

    Michael Waldman opines:

    Nino has his say:

    [You see, it's not just about the Messicans, you people. It's about Teh Ghey, too. Eventually, it will get back around to the Negroes, not to forget the Wimmens.]

    As the SacBee puts it:

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