The Racist Assault on the 14th Amendment
One of the many racist jokes I heard in the 70s during my time in the military starts with two white soldiers on the rifle range. One soldier asks the other how he learned to shoot so well. “I like shooting cans right off the fence,” the other soldier says, “Af-ri-cans, Por-to-ri-cans and Mex-i-cans.”
The joke came to mind when I heard Republican Senator Lindsey Graham of South Carolina saying, “birthright citizenship is a mistake,” followed by his GOP cohorts’ claim that immigrants have “anchor babies” as a way to tie themselves to the benefits of U.S. citizenship. Graham says he’s considering introducing a bill to rescind Section 1 of the 14th Amendment, which generally guarantees U.S. citizenship to those who are born within U.S. borders.
That is not all it does. The section reads:
“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.”
Also called the “due process” clause or the “equal protection” clause, this part of the 14th Amendment is the very foundation of U.S. civil rights law. The new nullifiers who talk of getting rid of it thus signal the nature of their purpose and the intrinsic unity of those they hold in contempt, like so many cans on the fence.
“Anchor babies” makes for better headlines, and it’s diverting. “People come here to have babies,” says Graham. “They come here to drop a child. It’s called, ‘drop and leave.’ To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case.”
“Drop a child.” It’s as if he were talking about animals.
Graham is not up for re-election, but his child-dropping potshot is designed to appease a right wing that is angry because he’s “too liberal,” he’s “no Jim DeMint,” saddled up with the Tea Party and the likes of Ollie North and Tom Tancredo. A Greenville County Republican committee even voted to bar Graham from future meetings and events, censuring him “for his cooperation and support of President Obama and the Democratic Party’s liberal agenda.”
So Graham, once a supporter of comprehensive immigration reform, has taken to sounding a lot like South Carolina Republican Lt. Governor Andre Bauer, who while running for Governor in a losing bid, said about the poor:
“My grandmother was not a highly educated woman, but she told me as a small child to quit feeding stray animals. You know why? Because they breed. You’re facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don’t think too much further than that. And so what you’ve got to do is you’ve got to curtail that type of behavior. They don’t know any better.”
Graham’s tack to the farther right concisely illustrates the recent trajectory of politics in South Carolina. Not so long ago, when Fritz Hollings was Senator, there was an unspoken deal that a state delegation of one liberal and one conservative represented. It still left the poor and black mostly behind, but the balance it struck indicated an accommodation to competing views, at least within the pinched terms of mainstream politics. Once Hollings was replaced by Jim DeMint that deal was off. But the forces DeMint represents are not content with a conservative Republican monopoly on the Senate delegation, so ordinary conservatism becomes the new “liberal” and Graham is on the run.
And what better place to run than into the warm ooze of race politics, where South Carolina has led the nation for more than 200 years? As point man for the Senate assault on the 14th Amendment, Graham is also cover for his friend and onetime “moderate” John McCain. McCain’s home state of Arizona is now ground zero in the immigration fight. He’s facing a tough re-election battle, so echoing the call for hearings on the “birth tourism” issue is the shot to fire. The farther right is happy to fall in line. Iowa Senator Charles Grassley said the amendment ought to be “reconsidered.” Senate Minority Leader Mitch McConnell of Kentucky said, “I think we ought to take a look at it — hold hearings, listen to the experts on it.” Jon Kyl of Arizona said that the only point of such “hearings” would be to consider the repeal of the provision: “The 14th Amendment [has been] interpreted to provide that if you are born in the United States, you are a citizen no matter what. So the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”
Over in the House, Minority Leader John Boehner of Ohio claimed that the nation’s schools and hospitals are “being overrun” by illegal immigrants. Representative Gary Miller of California had the jump on all of them last year when he sponsored a bill that would limit birthright citizenship to children born in the U.S. with at least one parent who is a naturalized citizen, legal permanent resident or member of the U.S. military. Ninety-three House Republicans have co-sponsored that Birthright Citizenship Act of 2009. It would change the law by statute rather than by constitutional amendment, but nobody much noticed it until now.
There is a perverse benefit to all of this blatant nativism. It reminds us of our history, and ought to be a wake up to everyone among those groups lined up on the fence who may have forgotten the true nature of the system and mistakenly believed themselves to be Amer-i-cans.
Representative Lamar Smith of Texas, the top Republican on the House Judiciary Committee and one of those co-sponsors of the Birthright Citizenship Act, argues that “When it [the 14th Amendment] was enacted in 1868, there were no illegal immigrants in the United States because there were no immigration laws until 1875. So drafters of the amendment could not have intended to benefit those in our country illegally.”
Smith is wrong, considering the status of enslaved Africans imported into the country after the 1807 ban against the overseas trade in human beings. Those Africans were brought to the U.S. illegally, so what would be the status of their progeny?
Therein begins the history lesson. On May 30, 1866, Senator Jacob Merritt Howard of Michigan, who drafted the citizenship part of the amendment, said, “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.” The only exceptions were for children born to foreign diplomats and children born of alien enemies who were detained or imprisoned.
The Reconstruction-era amendment, finally adopted as part of the Constitution in 1868, ensured that former enslaved Africans and their children were U.S. citizens. Together with the 13th Amendment, which bans slavery, and the 15th, which prohibits the government from denying any citizen the right to vote on the basis of race, color or previous condition of servitude, the 14th Amendment is fundamental to the whole country’s long walk toward human rights and equality under the law.
The citizenship clause came as a response to the prevailing legal sentiment in 1868 — particularly in the South — which specifically challenged the right of freed Africans to be citizens. The provision intentionally freed the new Americans from the Supreme Court’s 1857 Dred Scott decision, which held that people of African descent, particularly if they had ever been enslaved or descended from anyone who had been enslaved, were not entitled to the privileges of U.S. citizenship. The provision, along with other sections of the amendment, attempted to protect the new Americans from having to live under oppressive “black codes,” which restricted access to certain areas and which required African-Americans to carry passes or documentation of their status.
Given that history, there’s a powerful and obnoxious odor of mendacity emanating from Sen. Jefferson Beauregard Sessions of Alabama, who the other day blathered, “I’m not sure exactly what the drafters of the 14th Amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen.”
Doubtless, Sessions, a “son of the South,” who carries the names of two Confederate heroes – Jefferson Davis, president of the Confederacy, and General P.G.T. Beauregard — knows full well what the drafters of the 14th Amendment had in mind. His namesakes certainly did, and I’d wager his momma and daddy did too.
The Supreme Court’s landmark 1954 Brown v. the Board of Education of Topeka decision was based on the idea that the discriminatory nature of racial segregation “violates the 14th amendment to the U.S. Constitution, which guarantees all citizens equal protection of the laws.” Somewhere in his white Southern DNA Sessions knows that, even if he says Brown is merely the handy work of a zealot, Thurgood Marshall, and a bunch of activist judges ideologically opposed to states’ rights.
For all that history, the 14th Amendment wasn’t and isn’t just “a black thing.” It protected “the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, Negroes, mulattoes, and persons of African blood,” as President Andrew Johnson put it in 1866. Johnson wanted these groups excluded from citizenship. And in the Reconstruction period, as now, racism and white supremacy loomed large in public debate. Back then, opponents of the amendment talked about “public morality” being threatened by people “unfit for the responsibilities of American citizenship.” Today it’s Graham slurring immigrants as baby machines who come to America to “drop a child” so that they can get undeserved access to the U.S. The focus on reproduction, too, is but a twist on the long racist obsession with controlling black bodies, particularly black women and their children.
There is neither coincidence nor surprise in hearing Republicans intensify their demagoguery on the immigration issue at election time. Arizona’s Immigration Law (SB 1070) was just another shot in the long-running game of wedge politics. If it isn’t bashing Latino immigrants — primarily Mexicans, despite Sessions’ reference to Brazilians — it’s crying black (or reverse) racism. Or it’s railing about the threat gays pose by demanding equal treatment and protection under the 14th Amendment. Or it’s demanding a halt to the building of mosques or Islamic centers in New York City and the rest of the country, part of the increased hostility, profiling, surveillance and suspicion of Arab Americans since 9-11. In every case, as right-wing politicians implore their base to “take our country back,” the object is to use the threat or fear of being overrun by brown people, the “darkening of America,” to keep their core voters — those who vote along racial and cultural lines, or to protect white supremacy — revved up.
It’s “like shooting cans right off the fence.”
Demagoguery and cynicism aside, eliminating “birthright citizenship” would actually increase the number of undocumented immigrants. Children, who would have been citizens, would officially become illegal aliens were Graham’s constitutional amendment to pass Congress and be ratified by the states.
Also contrary to Graham’s claim, groups that study immigration trends say the number of “birth tourist” in the country is small, maybe a few thousand a year, although the number of U.S. citizens born to undocumented immigrants living here is believed to be around 300,000 every year. According to the Pew Hispanic Center, there were about 4 million such children living in the United States in 2008.
Most constitutional scholars agree that there’s small chance of changing or repealing the amendment. To propose a change requires support from two-thirds of both the House and Senate; two-thirds of state legislatures also can call a constitutional convention to discuss an amendment. Approval from three-fourths of state legislatures, or at least 38 states, is needed to ratify the amendment. And they would have seven years to get it done.
The last time it was done without dispute was nearly 40 years ago, when the national voting age was changed to 18. The 27th Amendment, setting rules for congressional salaries, was ratified in 1992, but that amendment was first introduced 200 years earlier, in 1789.
But tampering with the citizenship provision of the 14th Amendment in any way would be devastating. Apart from creating hundreds of thousands of newly defined “illegal” persons, it would increase racial profiling of Latinos. Conceptually, it would return the U.S. to the doctrine of the Dred Scott decision, the idea that one can never overcome the status of his or her previous condition: once a slave, always a slave; once undocumented, forever undocumented, down to one’s children and children’s children.
In his 1869 speech “The Composite Nation,” Frederick Douglass said, “Immigration should be settled upon higher principles than those of a cold and selfish expediency. There are such things in the world as human rights…they are universal and indestructible.”
I don’t believe the new nullifiers are going to get their way revising the Constitution. That doesn’t mean that they won’t try, or that the rest of us — black, brown, red, white, yellow, whatever — can afford to sit back. As the right is organizing, we must organize to protect the rights of so-called undesirables, many of whom we now call great-great-grandparents. They will not be written off as non-citizens, and neither will the child born in the desert, a hospital in El Paso or by a midwife in someone’s home.
If there are hearings on the 14th Amendment, all of U.S. race history, not just immigration, would be up for full discussion. And not just race in terms of black and white, but how race, region of the earth, ethnicity, religion, income and education have always worked against people of color in the United States.
Maybe a national bloodletting is what Graham, Sessions, Tancredo, DeMint, McConnell, Kyl and their party want: a fight over the future identity of this country and their ability to tilt it ever more, bit by bit, toward “their kind,” the kind of white, straight male Christian supremacist that wants to “take America back” to 1857, or 1953, or 1963, or 1968…
People, get ready.