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.

A Jack, a Hack, and a Quack

Getting lost in the spin-coverage of Sarah Palin, Jan Brewer and Rand Paul is the essence of what they allegedly stand for.

In common, they espouse theme positions that at best do not make sense and at worst are hateful and bigoted. Two of those themes are “the outsider” and “anti-establishment”. Before I get to specifics, let me ask a few questions for clarity. Please, pardon my pronouns.

What is this being “an outsider” supposed to mean other than you have not been elected yet? How does being an outsider benefit your constituency that elects you to office? What is in it for them? How are you going to get what your constituents elected you to get? Do you work well with others? Can you collaborate and negotiate on your constituents’ behalf, especially since that will be with the “insiders” – you know the people who actually run things?

What is this anti-establishment “no more politics as usual” rhetoric supposed to mean? Does that include anarchy? Does that mean other than usual or abnormal politics? Isn’t normal politics as usual really what voters elect a person to do in the first place? Isn’t the conduct of legislating so that the electorate does not have to what normal politics is about? How is being different from other people who successfully do politics for a living a valid qualifier to hold an elected position?

The Tea Party backed son of big-time insider, the rookie Rand Paul’s opinion on the Civil Rights Act did not get the coverage it deserved. The deniable plausibility defense that his comments were taken out of context is a cover-up story. The story is the Tea Party connection and an unconscionable position that supports invalidating parts of the Civil Rights Act. And even if Paul did not mean it, it is tooth paste out of the tube – hard to get back.

His dad called to coverage “unfair,” as if fairness is a high priority to establishment Republicans and their Libertarian cousins like Ron Paul. That Pops Paul is incumbent is because he plays well with others and has for years deserve noting. His official website proclaims that he is “America's leading voice for” among other things “. . . a return to sound monetary policies.” It does not say when such sound monetary policies existed, although presumably it was sometime before the Civil Rights Act, you know like the “I Like Ike” era. I digress.

Both Paul and Palin espouse positions on off-shore drilling that get incomplete or disconnected coverage. Sarah Palin says she remains a "big supporter of offshore drilling" despite the Gulf of Mexico oil spill, according to AP. She says it’s safer to dig in Alaska. Of the oil spill Paul says that “. . . sometimes accidents happen.” Each excuses the environmental catastrophe BP created. The Tea Party likes drilling. Never mind the pesky environment or conservation.

Meanwhile, Arizona’s governor has new propaganda that is both evocative and shallow. Jan Brewer is Rosie the Riveter, “Doing the Job the Feds won’t do.” That used to be called codswallop. The Feds are the only ones who can do anything about immigration. Arizona’s racial profiling law is being taken to court by no less than the NAACP and is also a matter of presidential inquiry by the Justice Department. Palin’s contribution is the Tea Party connection.

Congress passed the Emergency Quota Act in 1921. President Warren G. Harding signed the law which established national quotas for immigrants, although Latin Americans are not mentioned. It became the Immigration Act of 1924 and lasted until 1965, when it was replaced by Immigration and Nationality Act of 1965. After President Lyndon B. Johnson signed that law it went into effect in 1968 and is pretty much at the core of US immigration law today.

Johnson said of Immigartion Act of 1924, "This system violates the basic principle of American democracy, the principle that values and rewards each man on the basis of his merit as a man. It has been un-American in the highest sense, because it has been untrue to the faith that brought thousands to these shores even before we were a country." LBJ signed the Civil Right Act. He was not a lawyer.

Neither Palin or Brewer or Paul is a lawyer so they might not recognize that while their speech may produce resonance with populist sentiment, it espouses segregation. They might not know that the 1896 Supreme Court decision in Plessy v. Ferguson endorsed "separate but equal" racial segregation. It might be unclear that the law remained until the Brown v. Board of Education of Topeka renounced it 58 years later. They are not lawyers, alright..

The Tea Party and its spotlight-celebrities do like to cheerlead when they play in their ideological theme park -- “limited government, lower taxes, less spending.” If they really want to cut government size, reduce the tax burden and spend less, so much as they say, how come they do not call for ending the Iraq War and bringing our troops home? That would be all three rides in the Tea Party theme park.

The answer is that they are big supporters of the military, never minding that the military is a huge part of the government and is ridiculously expensive. The Tea Party loves guns, the 2nd Amendment and wants to "take the country back." It is anyone's guess how far back they want to take it.

Being the anti-establishment outsider for limited government who gets elected makes a great movie theme, like Frank Capra’s classic Mr. Smith Goes to Washington. But it ends there. The rhetoric is codswallop. The Tea Party connection of Palin the Jack, Brewer the Hack, and Paul the Quack has a segregationist tilt. The essence that is lost due to inadequate coverage is the disingenuousness of the themes being peddled with such Tea Party pandering.

Rube-Rhetoric

It was only a matter of time before Sarah Palin and Jan Brewer united. In solidarity they unveiled a new website and launched the call for a petition against boycotts. Those pesky boycotts by such cities as Los Angeles, Oakland, San Francisco, San Diego, St. Paul, West Hollywood, Florida, El Paso, and Boulder must smart. Before considering boycotts, however, let me first congratulate Sarah Palin’s producers for giving for giving her the best chant she has had to date.

The “…do your job” bit is great rube-rhetoric. After telling the NRA that president Obama and his administration want to take away their guns and ammo, while they “gut the 2nd Amendment,” last week, she took her pseudo-event show on the road again. “We are all Arizonan” goes perfectly with the show because it’s so easy to say. However, this grandstand is not just a show as it seems.

One understands that this ubiquitous it is serious and on purpose. However, the outcome might not be what Palin and Brewer think it will be, assuming they think anything. What they think they are standing for is contrary to what it really is. Neither of them ever says anything about equal justice under law. American flags and a call for female grizzly bear protectionism cannot disguise what that stand is.

Their stand does two things.

First, it sets back women elected as governors or to other high office to Geraldine Ferraro’s time. Second, it sets civil rights back to the Kennedy Administration’s time. They are not standing for border protection. They are standing for an unconstitutional law and the suspension of habeas corpus. Before the Civil Rights Act of 1964, legal segregation existed in the name of protection too.

A boycott is a show no less than the Tea Party Movement, which is show business. If boycotts seem only symbolic it is because they lack show business and aside from San Francisco mayor Newsom, they lack star-power in the articulate spokesperson position. However, unlike the tea folk’s show, the boycott has monetary impact on the red ink state of Arizona as well as its national appearance. NY Daily News reports that “backlash from Arizona's law could also cost the Phoenix area at least $90 million in revenue.”

Palin brings bright lights with her. Whether or not, as the Associated Press insists, she is a potential 2012 candidate for president aside, she has the phrase that pays rube-rhetoric and all. Brewer needs all the help she can get. It just has not dawned on anyone that voters will have these heady moments to look back upon as they recalibrate who their elected officials are going to be. Ask John McCain how that is working out.

The best of Palin's rube-rhetoric goes to blaming the president for the immigration law that Brewer signed. The president was being kind when he called the law “misguided.” In the 1980s Arizona initially rejected officially observing Martin Luther King’s Birthday as a holiday. Boycotts changed that.