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

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."

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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