Saturday, August 7, 2010

Attacking the Constitution

It's hard to remember a time when there was so much talk of Constitutional crisis, and so little justification for it.  We had a real Constitutional crisis during the Nixon administration.  And we had real efforts at nullification during the civil rights and school desegregation battles in the 1950's and 1960's.

Today we have manufactured Constitutional crises.  For example, some have proposed repealing the 14th Amendment's guarantee of citizenship for children born in the United States as a way of dealing with the "anchor baby" problem.    But the real problem is that we have  over 10 million undocumented aliens here right now, and a lot of them have children who are already citizens by virtue of the 14th Amendment.  We are not going to solve that problem by repealing the 14th Amendment, because that would not strip citizens of their citizenship retroactively.  Repeal would merely remove citizenship rights for future generations.  So if we did nothing else about immigration, depriving future generations born in the United States of citizenship could actually increase the number of illegal aliens.  Talk of repealing the 14th Amendment is therefore nothing more than a distraction from dealing with current problems.  And since such an effort would probably take years, and is highly unlikely to succeed, this kind of talk represents sheer political pandering.

Then there is all the talk of states trying to avoid the insurance mandates and other provisions of federal health care reform legislation.  Some of this talk is based on the long-discredited nullification theory.  Some is based on the Tenth Amendment; and some is based on simple ignorance of concepts such as the Constitution's supremacy clause.  Supporters of nullification rarely mention that its most notorious use in modern times came in resistance to school desegregation.  They forget that we fought a Civil War to demonstrate that states do not have the right to secede unilaterally from the Union.  And like the talk about amending the Constitution to deal with the immigration issue, all the talk about states' rights to reject federal health care initiatives does nothing to solve real problems.  First, because efforts such as the vote in Missouri to remove the federal health care mandates are legally meaningless:  either the federal government has the power to enact such a law or it does not.  The law's effect cannot be nullified by any state legislature or state ballot initiative.  Second because threats by states not to follow federal law do nothing to solve the real problems of making health insurance available to everyone who needs it.  Attempts to manufacture a constitutional crisis over this issue thus represent an effort to distract attention from solving real problems.

Why the need to inflate mere opposition to federal legislation into a challenge to the legitimacy of the federal government itself?  The Obama administration has done nothing qualitatively different from predecessors on either of these issues.  On immigration, if anything, the Obama administration has enforced the law more strictly than the Bush administration, and has advocated comprehensive reform not all that dissimilar to what Bush advocated.  The new health care law cannot be said to be more intrusive than Medicare or Medicaid, which take money out of every American's paycheck every week to pay for somebody else's health care.  And the stimulus and bailouts represent less of an expansion of federal power than FDR's efforts to end the Great Depression in the 1930's.  Nevertheless, some people see these policy debates turning into a kind of revolutionary hysteria.  Obviously, I'd rather see us debate these issues in a calm and rational way, but that seems to be too much to ask these days.

4 comments:

  1. I have not heard many rational people talking about repealing the 14th Amendment. I have heard some progressives use that claim as a rallying cry. Neither is helpful. I am leary of discussing law with world class attorney, so be kind!

    The 14th Amendment is not viewed as perfect. Never has been. It's been altered twice. Once to include women's right to vote and once in 1970 to lower voting age to 18 from 21 for both sexes. It's had flaws and probably still does.

    The Supreme Court has never ruled on the right of people here illegally to have their children born here be citizens. Perhaps it is time to examine that. The Amendment, in my view, cojoins giving citizenship to children born here to parents here _legally_ and under the jurisdiction of the government. Illegal immigration covers neither. This looks more like a common sense issue, not a racist or political issue (although suddenly both parties are seeing voters).

    It's part a finacial issue and part a national security issue. I live in San Diego. I have worked as a licensed physician here for 30 years. Trust me, there is a business going on here of crossing the border, dropping your child and staying on tax payor dollars. If one is in favor of that nation wide, I understand. If the security issue doesn't bother some; I understand. If travel agencies offering packages to a pregnant women to fly to the USA from Europe, have your baby and create a citizen is okay with some; I get it. Seems odd to me. I am probably in the minority on this subject :-)

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  2. John Kyl talked about it, and so did John Boehner. If you want to say those are not rational people, I won't argue. I agree that there is something troublesome about crossing the border and "dropping your child" to give that child citizenship. But having the child does not give the parents any greater rights to stay here at least not until the child is 18 I believe, then the adult child might be able to bring his parents back here legally. That could be the motivation in many cases, but I'd rather think that the primary motivation is to give something of potential value to the child. Undocumented workers are also not for the most part staying here on taxpayer dollars. If they have a legitimate job they have to pay taxes like everyone else. And if they used a phony id to get the job, they contribute to Social Security and Medicare, but they will never see any benefits from those contributions. Billions of dollars go into the Social Security trust fund from people using phony Social Security numbers. That offsets a lot of services that people get upset that illegal aliens are using.

    Also, it is the 15th amendment that deals with voting. The 14th is the one that prevents the states from taking away just about every other fundamental right we have, and in the course of doing that, made clear that anyone born in the USA, including former slaves, is a citizen of this country. My point is that such a sacred text is not likely to be amended, and certainly not in the near future, so that any politician talking about repealing the 14th amendment is failing to deal with current problems, and is instead talking about something fairly abstract and removed from anything we have to contend with today. And that includes travel agencies encouraging pregnant women to travel to the United States. To the extent that is a problem, it can be dealt with by tightening up on visas or other kinds of immigration enforcement, not by amending the Constitution.

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  3. I had a gut feel discussing law put me at a distinct disadvantage!

    << John Kyl talked about it, and so did John Boehner. If you want to say those are not rational people, I won't argue.>>

    Lets agree!

    << I agree that there is something troublesome about crossing the border and "dropping your child" to give that child citizenship. But having the child does not give the parents any greater rights to stay here at least not until the child is 18>>

    I don’t see it that way. Our government is not applying the law. Illegals crossing the border to have children are protected. I’m not a strong advocate one way or the other. I am torn. I am not saying it is all wrong. What I am saying is there is protection. As a policy, America looks the other way.

    << I'd rather think that the primary motivation is to give something of potential value to the child.>>

    We agree.

    << Undocumented workers are also not for the most part staying here on taxpayer dollars. If they have a legitimate job they have to pay taxes like everyone else. And if they used a phony id to get the job, they contribute to Social Security and Medicare, but they will never see any benefits from those contributions. Billions of dollars go into the Social Security trust fund from people using phony Social Security numbers. That offsets a lot of services that people get upset that illegal aliens are using. >>

    So much of the business is off record. Think along the lines of the largest cash crop in California as being Marijuana. It’s against the law. Change the laws – not selectively ignore them.

    << Also, it is the 15th amendment that deals with voting. The 14th is the one that prevents the states from taking away just about every other fundamental right we have, and in the course of doing that, made clear that anyone born in the USA, including former slaves, is a citizen of this country. >>

    Thank you. So we had the 13th, abolishing slavery, the 14th as a redefinition of citizenship relative to slavery, the privileges or immunities clause, due process and equal protection. Then (as you say) the 15th granting voting rights no matter color or previous condition of citizens; then there was the 19th -- finally adding women. There was a legal process, and it changed with current events.

    Amendments serve a purpose. Some amendments alter other amendments. Want a beer? Think the 18th, led by womens groups. Then 19th allowing women to vote. Then the 21st (led by womens groups due to crime) to repeal the 18th . Lets use the law and amendments.

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  4. The 14th Amendment won't change and it is politics but the fact that 60,000 children were born to illegals in Texas alone last year is disgusting to me.

    Talk about anchor babies.

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