Graham: It's an Election Year, Let's Dismantle the Constitution

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Consider the following: the School Busing Amendment (to cut back the Equal Protection Clause); the Flag-Burning Amendment (to curtail the First Amendment Free Speech Clause); the Religious Equality Amendment (ditto, the Establishment Clause); the Victims Rights Amendment (gutting the Fourth, Fifth, and Sixth Amendments); the Federal Marriage Amendment (to restrict the Equal Protection Clause and, incidentally, destroy "traditional" state authority over marriage).

What do these proposed constitutional amendments have in common? Each was a cynical election-year ploy, proffered by politicians who are, in fact, relying on the fact that the Constitution is very hard to amend. They are an attempt to wring some transient electoral advantage out of promising to do so, knowing there is no chance that it will happen.

In short, they show contempt for the document American office holders are sworn to uphold.

The latest politician to trash the Constitution is South Carolina's Sen. Lindsey Graham, who now says he is in favor of amending the Fourteenth Amendment to do away with its guarantee of citizenship to everyone born in this country. Washington Post columnist E.J. Dionne has masterfully skewered the rhetoric Graham has used to denigrate babies born in this country to undocumented immigrants; their parents are in this country, says the pro-life Graham, to "drop a child" and thereby acquire a citizen in the family. The cry has been eagerly taken up by Republican politicians trying to get ahead of popular outrage about illegal immigration, including Sen. John McCain, who has by now surely atoned for his tragic outbreak of statesmanship on the immigration issue.

It's repellent to see politicians claim that what ails our country today is not their own incompetence but rather the Constitution. And the squalor is made worse when the attack is made on the Fourteenth Amendment. Ordinary citizens, and even some judges, seem not to understand the function of this amendment. It is, not to put too fine a point on it, the part of the Constitution that makes America a democracy. We meddle with it at our peril.

The Fourteenth Amendment is the only place in the Constitution where the idea of human equality is recognized. Certainly the Framers of 1787 never endorsed it: they constructed a government with classes of people carefully defined in a hierarchy, beginning with "free persons" and descending through "Indians not taxed" to "other persons," the noxious euphemism they used for "slaves." They put in place a Bill of Rights that limited the federal government but placed no bar in the path of oppressive state laws restricting free speech, voting rights, or due process.

At the end of the Civil War, the victorious Union Congress created an amendment (by far the longest and most important in the Constitution) to ensure democratic politics and human rights wherever the American flag flies. Section One of the Amendment does the following. First, it makes every person born in the U.S. a citizen of the nation and of the state in which he or she lives. (This reversed the Supreme Court's Dred Scott decision that citizenship was a gift of the majority to favored groups or races.) Second, it applies the Bill of Rights to all persons in the states; and third, it bars any state from denying any person "the equal protection of the laws."

Note that the "due process" and "equal protection" clauses do not refer to citizens. They cover "any person," native or foreign born. The Amendment's framers understood that they would apply to immigrants as well as to citizens. (In fact, statistically, the percentage of foreign-born Americans in 1866, the year it was written, was about the same as it is now.) This was done, in the words of one of the Amendment's principal authors, Congressman John Bingham, to avoid "the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates."

But equal citizenship is the linchpin of the Amendment, and it, too, was put in place in full knowledge that it would affect immigrants' children. From now on, there would be one American citizenship. It would be guaranteed by the federal government, and absolutely binding on the states. It would embrace all our people, not just those the majority approved. In fact, the birthright citizenship guarantee was there to stop local majorities from constructing new hierarchies of human beings.

What the Fourteenth Amendment says is that "we don't like your kind around here" cannot be the content of any law; never again could there be a group with no rights the majority was bound to respect.

That's exactly the kind of inequality that critics of birthright citizenship want to create. If we take away citizenship from children born here, we create a new class of untouchables, born to suffer and serve. We take a big step back toward the conditions that bred slavery and the Civil War. And if you doubt that anything really bad could happen in our enlightened time, consider that the last time we barred a group of residents of this country from citizenship (immigrants from Japan), we ended up putting them--and their citizen children--into internment camps.

Legal inequality calls out the worst in any community. As Walt Whitman (one of America's truly great constitutional thinkers, wrote the year the Fourteenth Amendment was ratified, "Of all dangers to a nation, as things exist in our day, there can be no greater one than having certain portions of the people set off from the rest by a line draw--they not privileged as others, but degraded, humiliated, made of no account."

The children of immigrants are, whether their parents are "legal" or "illegal," our fellow Americans. They've violated no law, and committed no crime. For "pro-life" politicians to suggesting making outlaws of infants is particularly disturbing.

The latest Republican stunt has one advantage. It represents a concession by the right that they can't do away with birthright citizenship by statute, which they have been trying to do for a decade. But it is still squalid. Instead of focusing on ways to manage and improve the situation of people and communities, we will find another way to talk about how nice it would be if we could just make some people unequal to the rest of us. And instead of trying to understand the way our Constitution fits together, we will waste more time trying to pick holes in it.

Senators are sworn stewards of our Constitution. To see one abuse it like this is a disgrace. Lindsey Graham is not a fool; thus, in this matter, he is playing the knave.

He should be ashamed.


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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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