Monday, January 10, 2011

Amendments Two and Fourteen - similarities?

This originally appeared a few months ago. Now, with the recent shootings in Arizona and Tea Partiers again bringing up changing the 14th Amendment, this is a pretty relevant topic.

Anti-illegal immigrant groups have been talking about changing the Fourteenth Amendment to the U.S. Constitution, so that when people who are in the country illegally have children, those children are not U.S. citizens. As with anything else related to illegal immigrants - "undocumented residents", if you're more sympathetic to their plight - this is a very controversial proposal. It's also unlikely to get very far any time soon, which even its supporters admit. Still, I think it makes a lot of sense. Further, it reminds me of the situation with another controversial Amendment: the Second, which protects (or not, depending on your beliefs) the right to individual gun ownership. Here's what I mean.

Everyone agrees that illegal (undocumented) immigrants are a big problem. The disagreement mostly centers around whether we need to make it easier for people to enter and stay in the country - essentially an immigrant-friendly view, or that we need to make it harder for them to illegally enter and then stay in the country - the anti-illegal immigrant view. Please note that nobody claims to be against immigrants coming here legally, although Americans have long tended to not welcome foreigners of any status, and that tendency doesn't seem to have disappeared yet.

Among the problems that the anti-illegal immigrants ("antis" from now on) point to is how many illegals have children here who, under our Constitution, are automatically U.S. citizens. This creates all kinds of problems, not the least of which is: if mom and dad are deported, what happens to their U.S. citizen kids? The scale of the problem is huge, as many pregnant women apparently sneak into the country specifically so that their child is born here, gaining that prized U.S. citizen status. The Pew Hispanic Center recently reported that one in every twelve children born in this country was born to a mother who is in the country illegally, and other groups, including the antis, agree that number is about right.

But you can't change the 14th Amendment, top lawmakers say. Citizenship for those born in the U.S. is among the most sacred of our constitutional rights, and if we start fiddling with that right, which other rights will be next? Those proposing a change to the Amendment, they say, are merely playing politics, trying to win the antis' votes.

I'm not convinced.

When contemplating the Constitution and its Amendments, a crucial element is always: what did its authors have in mind? The related, implied consideration is: given what they had in mind, would they have written it the same way today as back then? The Second Amendment illustrates that point. Whether or not the Founding Fathers meant it to protect individual gun rights or merely the right of militias to own guns, as the two sides argue endlessly these days, the fact is that today "the right to bear arms" is a much more complicated proposition than it was 220 years ago.

As a strong supporter of the right to gun ownership by individuals, I nevertheless agree with the need for reasonable limitations on that right. Machine guns, grenade launchers, shoulder mounted surface-to-air missiles - could the Fathers ever have imagined such heinous weapons? If so, would they have felt that everyone - every one of us - should have unlimited access to those? Even convicted violent criminals? Avowed terrorists? Mentally unstable postal workers? What would the Founding Fathers think about people going into a McDonald's or a school or their workplace and shooting up innocent people with automatic weapons? What would they think about what happened in Oklahoma City in 1995 or on 9/11 in 2001? Could they have even imagined all the types of "arms" available today, and the horrific ways that twisted people use them?

It is reasonable, IMO, to think that the Fathers would have written the Second Amendment differently if they were to write it today. Or at least, since they tended to keep the Amendments short and simple, agree that the courts could clarify that certain limitations do not violate the Amendment's intent. Limitations on certain types of weapons that Joe Everyman can own, restrictions on certain types of people having access to guns - it seems to me that they would have wanted that in today's world. I don't think such limitations go against what they had in mind, even while I recognize my more conservative friends' fear that once you limit certain types of gun ownership, you're on a slippery slope that can lead to a near total gun ownership ban. They've got a point, but I still think the responsible and rational course of action, consistent with what the Founding Fathers had in mind, would be to have some limits on the right to bear arms. We do, after all, need laws that deal with the realities of today, not of those 220 years ago.

Let's consider the Fourteenth Amendment from a similar perspective. Following the Civil War, the states ratified the proposition that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." This, of course, was primarily about making former black slaves, as well as Native Americans (Indians), U.S. citizens. There was no such thing as an "illegal-immigrant" in the U.S. at that time. In 1868, when the Amendment was added to the Constitution, huge swaths of the country were still unpopulated and immigrants were actively encouraged to come to America with few if any restrictions. In fact, the first immigration law in the U.S. wasn't even passed until 1875. Obviously, the implications of granting citizenship to the children of people who had illegally entered the country was the farthest thing from anyone's mind back in 1868.

Fast forward to modern times and ask yourself: would the Amendment's authors, and the state legislators that ratified it, have wanted it to be abused the way that it is today? If those legislators could see the situation today, with all the problems of illegal immigration and with people purposely breaking the laws of the U.S. in order to have their child born here, do you think they would want that child to be rewarded with U.S. citizenship? Obviously, I don't.

I still have mixed feelings about what to do with illegal immigrants overall, as my earlier writings on the topic indicate. But on this one small issue, it seems like there is an obvious and simple answer. Why should we not adjust the Amendment to reflect our modern realities? As with the right to bear arms, our government has an obligation to operate under laws that make sense given today's realities, not in the world as it was 150 years ago. We do, after all, pride ourselves on being a nation of laws; requiring that someone be here in line with our laws in order to get citizenship - how is that a problem? Perhaps something as simple as adding the word "legally" in front of the phrase "born" in the Amendment, although it would probably have to be more like "born to a mother who was legally in the country at the time" - or whatever.

How, exactly, would this modification detract from the Constitution, the rights of legitimate American citizens, etc? It's a huge stretch, IMO, to say that such a minor, simple, and logical change sets a precedent for weakening our Constitution and our constitutional rights. Similarly, the answer to those who say: well, if we change this Amendment, what happens to those who were born here under illegal circumstances before the change? That's a simple one: they are grandfathered (exempt from the change), just as people are usually grandfathered when any new law changes the rules.

As this site's title reminds us, things usually aren't as simple as we think they are. So maybe I'm missing something here. One problem may be that we really don't want to start tinkering with the wording of Amendments; changing Amendments is a serious and difficult process. Well fine; just as with the Second Amendment, we could simply allow the courts to rule that not granting citizenship to children of parents of illegal status doesn't violate the intent of the Amendment. Because, if it's OK to tweak the 2nd Amendment to fit the times, then why doesn't the same apply to the 14th? What's good for the Goose.... as they say.
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