Saturday, August 7, 2010
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.