Don’t Mess With The 14th Amendment!

David S. White
Principal of the Law Firm of David S. White & Associates, West Los Angeles, specializing in litigation, arbitration and mediation of real-estate-related disputes and litigation since 1977;

Rumblings from the Conservative side of things concern me lately.  There is suddenly loose talk about having to do something about the 14th Amendment, like one has just discovered an ant invasion in one’s kitchen after a heavy rain.

First, the whole idea has a snowball’s chance in hell of ever happening.

Second, the 14th Amendment has a long and fascinating (if you are a legal scholar) history, from its post-Civil War 19thC roots through today.  It underpins so much of our modern jurisprudence that it is unimaginable to mess with at this point.

Former Gov. Mike Huckabee, 2008 Presidential Candidate, in a recent interview with NPR, had the good sense not to go along with loose talk like this, as the pre-MidTerm Election Silly Season gets underway.

"Would you favor it?" pressed NPR’s host Tom Ashbrook.

"No," said Huckabee. "Let me tell you what I would favor. I would favor having controlled borders. . . . that’s where the federal government has miserably and hopelessly failed us."

After the incredibly bloody American Civil War, ending in Lincoln’s assassination, an angry Congress lashed back with a series of what are called the Reconstruction Amendments.  One of these, the Fourteenth Amendment (by it’s proper name, "Amendment XIV," for you fans of Roman Numerals out there – you know who you are), to the United States Constitution, was adopted July 9, 1868, just a month or so shy of 142 years or so ago, longer than anyone alive can tell us about.  One of the things the 14th Amendment accomplished was to wipe away the US Supreme Court’s shameful ruling in the Dred Scott v Sanford (1857) case, (involving runaway slaves and legal rights in accordance) by including what is known as the Citizenship Clause, supplying, in the wake of the ending America’s cursed institution of slavery, an expansive definition of just who is a US citizen.

The Citizenship Clause is also known as the Naturalization Clause, the first sentence of Section 1 of the 14th Amendment , was Congress’ necessary reversal of that portion of the Dred Scott decision which declared that African Americans then in the US were not, and could not ever become, US citizens – or enjoy any of the privileges and immunities of American citizenship.  A Federal statute, the Civil Rights Act of 1866, was originally vetoed by the mostly drunk, but ever-loveable, President Andrew Johnson, and then passed by Congress over his veto anyway, by, what were then known as Radical Republicans in Congress – how times change!  The Civil Rights Act of 1866 had already granted US citizenship to all people born in the United States "not subject to any foreign power," but the 39th Congress was very concerned (after all the bloodletting of the Civil War) about the constitutionality of the Civil Rights Act and thus wanted to assure that a future majority of Congress could not simply repeal the hard won rights of African Americans – what we in the legal profession call the ‘belt and suspenders’ approach.

Now that we have this ugly bit of our shared history firmly in mind (especially for the historically-challenged among us), I ask you, Dear Reader: DO WE REALLY WANT TO GO THERE???

As Mid-Term elections come ever closer, and our 24/7 Media Wags become totally obsessed with every word that happens to fall from the mouth of every candidate, it is good to remember –  some things may sound ‘catchy,’ but that, upon mature reflection (there are still some in Congress capable of mature reflection despite our partisan wars, are there not?) they are actually ridiculous nonsense.

This is surely one of them.  Even worse, it distracts from the real problems we are drowning in right now – like doing something about our rotten economy!

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