Sunday, August 8, 2010

Assault on the Fourteenth

The founding idea of “Equal Justice Under Law” is literally carved in stone above the entrance to the Supreme Court building in Washington, D.C. The Republican Party wants that idea changed. They want exceptions. They want “Equal Justice Under Law Except For Immigrants From Mexico. “ It’s like saying, “Liberty and Justice for Almost All.”

The Republicans won and Congress enacted the Fourteenth Amendment to the Constitution in 1868. Times have changed. Republicans have changed, too. Now they want to repeal the Fourteenth Amendment. With a midterm election looming, the out-of-power GOP has found its bandwagon in immigration. Its’ bigotry-mongering is aimed directly at Mexican immigrants, somehow segregating them from immigrants of other countries, like Russia or India.

Since its passage in 1868, the Fourteenth Amendment is the basis of all Supreme Court decisions having to do with our Civil Rights. Thus, the Republican assault on the Fourteenth Amendment is an assault on the Civil Rights Act of 1964, not to mention the subsequent Voting Rights Act of 1965 and Fair Housing Act of 1968. Their argument to repeal it singles out Hispanic babies as enemies of the country who deserve to be punished for the crime of being born in the United States.

Congress passed the Fourteenth Amendment to counter what was at that time called the "black codes," such as depriving citizenship to children born of former slaves. To make sure that the States could not legislate against it, the Fourteenth Amendment requirement is that “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws."

The GOP has created an immigration band wagon that harkens back to a time when discrimination and segregation were legal. Ginned by the plight of Arizona and immigration issues peculiar to all four of Mexico’s border states, on board are such prominent Republicans as Senator Lindsey Graham (SC), Senator Jon Kyl (AZ), and Senator Mitch McConnell (KY). Eliminating the so-called “birthright clause” is intentionally aimed at Hispanic children by discriminating against them and not children born of undocumented aliens from countries other than Mexico.

Senator Graham argued that the Fourteenth Amendment no longer serves the purpose it was designed to address and that Congress should reexamine granting citizenship to any child born in the United States. “I'm looking at the laws that exist and see if it makes sense today,” Graham said. “Birthright citizenship doesn't make so much sense when you understand the world as it is.”

Senate Minority Whip Kyl also supports hearings on repealing the Fourteenth Amendment to the U.S. Constitution. Kyl said that he opposes allowing children of undocumented immigrants to be granted U.S. citizenship and wants Congress to hold hearings on the matter. "The Fourteenth Amendment [has been] interpreted to provide that if you are born in the United States, you are a citizen no matter what," Kyl said. "So the question is, if both parents are here illegally, should there be a reward for their illegal behavior?"

Senator McConnell says Congress should reconsider the Fourteenth Amendment citizenship guarantee and joined the immigration bandwagon. "I think we ought to take a look at it -- hold hearings, listen to the experts on it," McConnell said. "I haven't made a final decision about it, but that's something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don't think anybody thinks that's something they're comfortable with."

The Republican immigration bandwagon claims that children of undocumented aliens will overburden a State’s resources cannot be justified and such an argument has already been held by the Supreme Court to be unconstitutional. What this Republican assault on the Fourteenth Amendment does is to attack “citizenship” by renaming it the “birthright clause.” It also attacks “due process” and “equal protection.” Its’ cynical purpose is to set the stage to reverse three Supreme Court decisions that Republicans have never liked that are on its to-do list.

· Citizenship: Plyler v. Doe (1982) protecting all children born in the US
· Equal Protection:
Brown v. Board of Education (1954) ending “separate but equal”
· Due Process:
Roe v. Wade (1973) extending the right of privacy to abortion
Here is what the Supreme Court held in those cases that you will find in the links above.

Plyler v. Doe

A state statute “which withholds from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.”

The Court’s ruling says, the statute “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status.”

Furthermore, “Use of the phrase ‘within its jurisdiction’ confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.”

The immigration band wagon may get many more passengers on board on its way to the midterm elections. A band wagon is a band wagon. It sounds best when it is standing still. But it is going to play hell getting by Plyler, which will make the band wagon moving anywhere after the election a no-go from the git-go. Amendment 14 says so.

Brown v. Board of Education

"We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

Under the guise of a “birthright” reward, being deprived of protection by reason of segregation is the effect. The GOP program is not about “separate but equal”; it is all about “equal protection.” Here is the prize.

Roe v. Wade

“State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.”

Reversing Roe has been the ultimate objective of anti-abortionists and the GOP since 1973. All previous attempts to reverse the decision have failed because of that pesky Fourteenth Amendment. Now there is one more case to add to the list of decisions that the GOP would like reversed. It is a civil rights case.

· Civil Rights:
Perry v. Schwarzenegger overturning the California ban same-sex marriage

Perry v. Schwarzenegger

The appeals are filed on this latest civil rights case that rests on the Fourteenth Amendment. The case
overturns California Proposition 8 ban on same-sex marriage. U.S. District Court Judge Vaughn Walker ruled the measure was "unconstitutional under both the due process and equal protection clauses" of the Fourteenth Amendment. "Because Proposition 8 disadvantages gays and lesbians without any rational justification," Judge Walker ruled the ban bombs.

Both the Proposition 8
gay marriage ban and the Arizona SB 1070 Immigration law have two things in common. First, they seek to segregate a group of people for punitive purposes. Second: they attack the Fourteenth Amendment, which establishes protection of “citizenship” to children, grants “due process of law” to everyone, and “guarantees equal protection of the laws.” Because of that, both Proposition 8 and SB 1070 have been overturned, each measure being held to be unconstitutional.

Let us accept the offer that the Republican immigration band wagon has put forth, that the Fourteenth Amendment needs to be reviewed in context of today’s laws and society. Using that logic, then let us equally review the Second Amendment in the same context. The acclaimed GOP birthright to guns says, “A well regulated militia being necessary to the security of a free State”, to quote Senator Graham, “doesn't make so much sense when you understand the world as it is.”

The Fourteenth Amendment issue is about the Constitution, not some election show. It is about Equal Justice Under Law.

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