At the risk of causing apoplexy among some readers, let me make a confession: I'm ambivalent about so-called birthright citizenship. This is a cause celebre among many conservatives. As the New York Times reports, "Arguing for an end to the policy, which is rooted in the 14th Amendment of the Constitution, immigration hard-liners describe a wave of migrants...stepping across the border in the advanced stages of pregnancy to have what are dismissively called 'anchor babies.' ”
They have a point. As Jack Rakove writes in his indispensable The Annotated U.S. Constitution and Declaration of Independence, the writers of the 1868 14th Amendment were entirely focused on the end of slavery and Reconstruction. First, they wanted to reverse Dred Scott, which held that even free African-Americans were not citizens; second, they wanted to give constitutional authority for the Civil Rights Act of 1866 and its efforts to prevent the old Southern ruling class from keeping the freedmen in serfdom (Jim Crow killed that ideal for a century). Yet I'm not thinking so much as an originalist as someone who believes the framers intended the Constitution to be malleable enough to change with the times. Neither they nor the writers of the 14th Amendment envisioned an overpopulated Third World country on our border, or our unthinking and venal appetite for its cheap labor.
We owe something to the immigrants we have exploited, particularly in Arizona and the Southwest (the anti-illegal immigration forces would deny even that). I'm just not sure citizenship for their children should be part of it. It's one of many areas that I come down between the battle lines that are neatly drawn by talk-radio ideology.
Does the Constitution have a "penumbra" (as Justice Blackmun called it) in the right to privacy that extends to a fundamental protection of abortion. No. Like Bill Clinton, I think abortion should be legal, safe and rare, and like candidate George W. Bush I believe anti-abortion forces should seek to change hearts rather than reverse Roe v. Wade. But our politics over the past 40 years might have been less poisoned if the abortion debate had been allowed to be settled democratically, state-by-state.
The Second Amendment, ambiguous as it is, does apply to individuals, just as all the amendments in the Bill of Rights. If you want to take away guns, amend the Constitution. Still, no right is absolute and some gun control is perfectly reasonable. Many of the framers did want a potentially tyrannical government to fear an armed citizenry. Few aside from Hamilton imagined a complex, highly urbanized nation of 300 million, and even he couldn't fathom the nuts we'd breed. The dreamy intellectual Jefferson did write that "the tree of liberty must from be refreshed from time to time with the blood of patriots." Notably, Jefferson didn't fight in the Revolution (and as president he blithely stretched the Constitution with the Louisiana Purchase). One who did face real bullets, George Washington, put an end to the notion of perpetual revolution by suppressing the Whiskey Rebellion. The American Revolution was sui generis in that it was carried out by a uniquely gifted set of men who were able to put in place a stable and enduring government. Even so, the power (not right, for rights adhere to individuals) of secession was never clarified but put to rest, for the time being, by the bloodiest war in our history.
The victory of so many extremely conservative Republicans to the Congress might open a legitimate debate on the role of the federal government. I'm all for it. It will likely turn into a toxic theater that will change nothing — the federal government grew like kudzu during the Reagan and Bush years. Yet the federal government does too much, and much of what it does could be done better by the states. That's not to advocate for a pre-1933 federal government, as today's reactionaries do. But to have a searching and serious debate on its role for the 21st century. I'm not just talking about rules in the Federal Register or whether Uncle Sam should be regulating our diet or toilet designs. Should we have such a large standing army and foreign entanglements? The founders certainly would have said, adamantly, no! Should so much of the federal treasury go to corporate welfare while "internal improvements" for the general welfare — today that would be high-speed rail, among other things — languish?
None of those things will be answered. They don't resonate with the Tea Party, and their corporate oligarch string-pullers want it that way. As for "states' rights" and "local control," these are only words for the reactionaries. Funded by overwhelming corporate and plutocratic money, they seek to ruin any state that goes a different direction from theirs (witness the war against the Washington State Ferry System). But it's between the lines where so many debates should be operating, searching for answers.
It won't happen because too many white Americans who inveigh against "birthright citizenship" haven't a clue about the grave meaning or heavy responsibilities of citizenship themselves. They are just "consumers." They don't know history. Mr. Horne was a teach-to-the-test guy, so history and civics got short-shrift in Arizona as throughout America. A proper instruction in both would give Mexican-American students, as well as others, a full measure of the nation's mistakes and greatness, as well as the duties of citizenship. To make an informed vote, for example, when too many Hispanics don't vote at all. Not to mention helping prepare them to thrive in a competitive world. Mr. Horne could care less. For him, the Tucson program was just a profitable target to please the white-right, which does vote.
I'd like to recommend Jill LePore's The Cult of the Constitution in last week's New Yorker. It puts our "debate" about that document in historical context. If you're a Teabagger, however, you might not like what you read. http://www.newyorker.com/arts/critics/atlarge/2011/01/17/110117crat_atlarge_lepore
I'd also like to cop to some non-PC viewpoints. I don't think immigration is an unalloyed good. I think the Open Borders people have often been motivated by an urge simply to drive wages to the bottom, and certainly the huge wave of Latino immigration over the past 30 years has helped achieve that. Citizenship itself is a secondary concern among those just hoping to achieve a less punishing existence.
But the culture, such as it is, depends on some homogeneity. I write as someone who really loathes Sarah Palin and the "real Americans". I think Mexicans themselves are more admirable than not. And I'm sometimes reduced to mute amazement by their humility and work ethic. But this huge influx has made America less willing to see itself as a social compact. It's made us anxious and mean. It's helped Republicans in their vile Culture War. And their divide-and-conquer strategy threatens our already-weakened social democracy.
That said, I'm not sure there's any way to unring that bell. The Mexicans who are here are not going to be herded into cattle cars and sent back home. Either we assimilate them or we ghettoize them as a permanent underclass. The 14th Amendment will not be repealed, and any new constitutional amendment to remove birth-right citizenship faces an uphill battle. I wish this wasn't our fight as "liberals" but we either love this country the way it is or we cease to be ethical actors on the public stage.
The coming decades are going to be worse, not better. Mexico is under severe stress from overpopulation and can barely hold its own against militarized drug cartels. Once the Cantarell oil field is depleted (within a decade, it appears), the Mexican government will lose 40% of its revenue. I don't think it's too overwrought to imagine a catastrophe there in the near future.
There will be bloodshed there and here. I can't imagine how we contain it and insulate ourselves from these harsh geopolitical facts. We are not innocent or exceptional, either. We have exploited Mexico and Mexicans for well over a hundred years. But this is not karmic comeuppance or poetic justice. This is, simply, the tectonic plates of human oversupply and overdemand fracturing before our frightened eyes.
Posted by: soleri | January 19, 2011 at 05:15 PM
Couldn't agree more; though I am weary and therefore do not support SB 1070, I find it harder to argue for keeping the 14th Amendment as is and I'm Hispanic/Latino/Mexican-American/Chicano or whatever label one feels appropriate.
And even though I am extremely supportive of some gun rights, from a military background, etc I find the 2nd Amendment somewhat out of touch with today's America.
Soleri, I've always been a little uneasy with the goings-on along the Mexican border. I've been thinking for a while that some militarization of certain zones more probable; especially if the violence escalates and an unfortunate spill over does occur.
Posted by: phxSUNSfan | January 19, 2011 at 06:26 PM
Jon has repeatedly observed that our immigration hawks have pointed us toward "creating a permanent underclass" with huge societal costs. This calls for open discussion among thoughtful people with more than a modicum of critical thinking skills. Rogue Columnist is such a forum, in my opinion.
Posted by: Jim Hamblin | January 19, 2011 at 06:38 PM
Jon, I am not this lest bit upset with your thoughts on this. I think they are chronologically logical regardless of ones political persuasion. From 10 to 19 I worked the Arizona fields back when Cesar was in the fields. Almost all my buddies and girlfriends were Hispanic.
Ill never forget the nights at the drive ins with the blond, green eyed, freckle faced girl from Mexico. I had to fight the Pachucos over her. Interesting now that most those mexican guys are ardent foes of illegal immigrants, including my old DEA Yaqui buddy from Guadalupe that I am having lunch with manana.
Go figure. I would like to see real capital investment in Mexico, not money for the "drug war." See Bowden.
Mas Tarde. cal and his dog spot from their motor home somewhere in the great Sonoran desert. What's left of it.
Posted by: cal lash | January 19, 2011 at 06:51 PM
Great history lesson, Jon.
I am not full of advice, solutions, or commentary at the moment. But, I will tell you I listen to Red Skelton explain the Pledge of Allegiance. Since prayer is no longer acceptable in schools, maybe listening to Red explain the meaning of each word of the Pledge would be beneficial.
My school teacher daughter would only hope that someone will allow teachers to teach, instead of as you put it teach to the test. But, unfortunately, I am not very hopeful about Arizona right now.
Posted by: A Vintage View | January 19, 2011 at 09:23 PM
I just heard Sen. Russell Pearce say "most richest" in reference to Arizona's AHCCCS...can we make an English competency program a part of an elected official's duty? I'm sure Pearce would "refudiate" this because of the cost to the taxpayer, no doubt.
To A Vintage View, I know hope is a personal thing to many people, but I was once told eloquently in a different language that "hope never expires."
As a person who's been stationed in many different areas and traveled to vastly different landscapes, I can tell you that Arizona is far from hopeless...just my young, foolish, worldview perhaps.
Posted by: phxSUNSfan | January 19, 2011 at 10:16 PM
Okay, before I even read the rest of the article I have to address the contention that abortion rights should have been decided state by state. My right to an abortion (and contraception before it, as decided in Griswold v. Connecticut) is my fundamental human right that no political entity - be it nation, city, state, hamlet, whatever - gets to take from me. The ability to control my reproduction is mine. To say that it should be left to the states is to imply that women are property.
As for the privacy argument I think it's a fine thing to respect privacy and it was probably the best course for the lawyers at the time to get the desired Griswold and Roe decisions but I've always thought women's bodily autonomy and freedom from involuntary servitude is a stronger argument.
Posted by: Donna Gratehouse | January 20, 2011 at 02:50 PM
Soleri, as always you are eloquent and incisive. As someone who's quite active in Democratic and progressive circles in AZ I find that when I bring up certain undeniable realities about immigration, such as wage suppression and exploitation, it's as well received as a turd in a punchbowl. I've said for years that the biggest strategic mistake liberals made on this issue was aligning with the business community. The shameful disgusting duplicitious cowardice of the Arizona business community in the face of SB1070 should make that obvious to all. The AZ Chamber endorsed every single pro SB1070 Republican candidate in 2010.
Posted by: Donna Gratehouse | January 20, 2011 at 04:05 PM
Our two inner city teachers in the family represent almost 60 years in the classroom. While they have different political leanings, they both see our Latino students as a resource that must be developed. They have a gut level understanding of the societal risks of creating a permanent underclass. And that's where we appear to be headed . . . . agree or disagree?
Posted by: Jim Hamblin | January 21, 2011 at 10:59 AM
Heck Jim, there's going to be a huge underclass and 90% of America will be in it. The top 10% will rule with an iron fist thanks to a gigantic homeland security force and military. We've been an oligarchy since the early 1800's and now they don't even bother to hide it. But, like most of my friends, neighbors and family say "JUST AS LONG AS I'M SAFE, THEY CAN DO WHATEVER THEY WANT" . Since America went dumb, most folks don't even know what oligarchy means, so how on earth do you get people to prevent it from happening??
Posted by: azrebel | January 21, 2011 at 11:16 AM
"I was once told eloquently in a different language that 'hope never expires.'" - phxSUNSfan
"I can tell you that Arizona is far from hopeless..." - phxSUNSfan
Despite the fact that the latter statement follows logically from the former, the contention of the latter statement, I suppose, depends on one's definition of "Arizona". What is certain is that what has been built within the extant borders of Arizona is unsustainable on myriad dimensions.
Posted by: Rate Crimes | January 22, 2011 at 08:27 AM
Jon:
I'm not apoplectic, but your analysis on these issues lacks your usual clear eye. Perhaps that's because constitutional law is not your usual beat. But it is one of mine.
A couple of thoughts. First, with regard to birthright citizenship, I'm not sure I understand whether your argument is that such citizenship is not protected by the 14th amendment; that the Supreme Court wrongly held so in the past; or whether the constitution should be amended to eliminate it because it's a bad idea and we should free Congress to enact a different policy choice.
Those are all different arguments. For starters, we should all agree that it's a horrible idea to subject constitutional rights to the prevailing voter sentiment of the time. The entire point of the bill of rights was to avoid that. Donna has properly castigated you for suggesting that the constitutional right to privacy should be subject to the whims of individual state legislatures. She's also pointed out that reversing Roe would reverse the basis for Griswold, leaving states free to criminalize contraception between married couples.
Second, your dismissal of constitutional penumbras is ill-founded. It's inconsistent to concurrently opine that the constitution does not establish a right to privacy and that the second amendment provides for an individual right to bear arms, divorced from the linkage of a "well-regulated milita." You can't accept an individual right to bear arms (with which I'm entirely comfortable) while rejecting a similarly expansive reading of other amendments. Either the bill of rights should be expansively read and rigorously defended, or it should be not.
If you're in favor of an expansive reading of the bill of rights, then you should support both gun ownership and the right to privacy. Intellectual consistency demands that.
Finally, you are correct that finding something to be protected by the bill of rights does not prevent the government from restricting exercise of that right. The first amendment protects the right of free speech, but does not prevent states from imposing civil liability for libel. And, as they say, it doesn't make you free to yell "fire" in a crowded theater.
You could well be correct that lax immigration is tolerated because it's in the interest of the business community. Perhaps the idea that birthright citizenship is a constitutional right is part of that equation somehow. Personally, I think people willing to brave death and expolitation are precisely the people we need to rebuild this country, and we shouldn't amend the constitution to eliminate citizenship for their U.S.-born children. But my preference, or yours, is not the issue: the issue is whether any of us should be encouraging Americans to more narrowly interpret the bill of rights in order to facilitate our personal policy preferences. We shouldn't.
Chris Thomas
Posted by: CDT | January 22, 2011 at 08:45 PM
Just went to Google, hit "news" first story up was a column by Jon Talton concerning Obama's State of the Union speech.
Congrats.
Posted by: azrebel | January 22, 2011 at 10:05 PM