The War on the Fourteenth Amendment

Yesterday, a judge overturned California’s Proposition 8 ban on gay marriage because it “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

An "I could be illegal" button.Meanwhile, some Senate Republicans and some legislators in Arizona have been looking into the possibility of overturning birthright citizenship in the United States.

What do these two seemingly disparate things have in common? Both Proposition 8 and attempts to overturn citizenship by birth are direct assaults on the Fourteenth Amendment to the Constitution.

The reason the judge’s decision on the California law was possible was because, in the words of California Attorney General Jerry Brown, who refused to defend the statute, “Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.”

Meanwhile, it’s also the Fourteenth Amendment which explicitly says that if you’re born here, you’re a citizen. Here’s Section 1 of the amendment:

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.

It’s hard to get more open and shut than that. Anybody born here is automatically a citizen, and you can’t extend a set of privileges to one group of citizens while denying them to another. Laws, rights, and legal privileges have to apply equally to everybody. It’s obviously in the Constitution, and the fact that the constitutionality of these things are even being considered subject for debate, let alone revocation, would be laughable if it wasn’t so dangerous.

So why is this particular amendment under totally irrational attack from multiple directions by otherwise rational people who are supposedly sworn to uphold it?

My guess is this: it’s the Fourteenth Amendment, more than anything else, that defines the United States — in theory at least — as an inclusive society. In the middle of the 19th century, at a time when most other countries and national groups were defining themselves in exclusive terms on the basis of things like ethnicity, language, and religion, we were doing — theoretically at least — the exact opposite.

It was, I think, one of this country’s greatest ideas and one of its greatest contributions to the world. It was a radical idea then, and it’s clearly still a radical idea now, judging by how many people even here are loudly uncomfortable with its necessary implications nearly 150 years later.

Those expressions of discomfort have become vastly amplified in recent years as we have continued to inch, all too slowly and all too painfully, toward turning the theoretical into the real, and as those necessary implications have become increasingly obvious to everyone. Exhibit A: Anyone born here is a citizen. Period. It doesn’t matter how either of their birth parents ended up here. Exhibit B: Either the legal rights and privileges of civil marriage are open to everyone or they are open to no one. Period.

Everyone, no matter what they look like, no matter what language they speak, no matter what their cultural traditions, no matter what their family history, no matter what their sexual orientation, is supposed to be equal under the law, with equal privileges, protections, and opportunities. No matter how much we may clearly differ from one another, we are all equally citizens of the United States, and we are all equal contributors to the United States. That embrace of our differences defines our nationhood and is our collective strength.

Things like the Christian cross, the Darwin fish, the Rainbow flag, the Star of David, the Crescent, Kachina dolls, hex signs, St. Patrick’s Day, Cinco de Mayo, Kwanzaa, Chinese New Year, etc. are all equal expressions of who we all are on some level, represented symbolically by the Stars and Stripes. We’re the country where all of those things can stand united — at least that’s what we’re supposed to be. Our national motto translates to, “Out of many, one.” The “many” don’t vanish; we join together as “one.” The “many” form the prerequisite for the “one” to exist in the first place. Sort of like Voltron, if you want a goofier analogy. It’s the Fourteenth Amendment that articulates that ideal, points the way to it, and provides its legal framework.

Watching that slowly come into force has to be awfully unsettling for some who have for generations, without ever having to consider it, been enjoying privileges for themselves that have been denied to others. It’s very easy — too easy, in fact — for someone in that position to see the extension of the rights they’ve always had to others as an erosion of their own rights. Suddenly they don’t feel quite so privileged, even though their own privileges have not changed. That’s an earthquake for some people, and of course they’re going to bristle against it. Throw the profound sense of insecurity and general unease triggered by an economic crisis into the mix and you have the recipe for a highly volatile Molotov Cocktail leaking throughout the right of the political spectrum.

That desire to impose at all costs an exclusive, rather than an inclusive, notion of who we are is, I think, what’s really going on behind the “border security,” “Tea Party,” “9/12,” and “defense of marriage” movements today. That’s what’s really meant when you hear talk of “taking our country back.” The only way to do that, though, is to gut the 14th Amendment. I’m afraid many who sympathize with ideas embraced by those groups are neither aware of the fire they’re playing with nor the extent of its costs.

But don’t just take it from me; take it from a guy like Alan Keyes, with whom I’ve agreed on absolutely nothing through the years, but I believe has somehow managed to hit the nail on the head here:

The 14th Amendment is not something that one should play with lightly. I noticed, finally, that Lindsey Graham, used the term — as people have carelessly done over the years — referring to the 14th Amendment as something that has to do with birthright citizenship, and that we should get rid of birthright citizenship. Now let me see, if birthright citizenship is not a birthright, then it must be a grant of the government. And if it is a grant of the government, then it could be curtailed in all the ways that fascists and totalitarians always want to. I think we ought to be real careful before we adopt a view we want to say that citizenship is not a reflection of our unalienable rights.

So go ahead, folks. Start messing with the Fourteenth Amendment. If you’re successful, someday you might get to be Robespierre, too.


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