Wednesday, August 4, 2010

Amending the 14th Amendment, Another Fake Out?

Yesterday, a group of Republican Senators came out in favor of holding hearings on amending the 14th Amendment, which grants citizenship rights to anyone born in the United States. This wouldn't be unusual if the Republicans were Jim DeMint or a James M. Inhofe. But they weren’t. This time it was Arizona’s John McCain and Jon Kyl, McCain’s domestic partner Lindsey Graham, and Alabama’s Jeff Sessions. A strange collection indeed. So is this for real? In truth, I think the answer is “no.”

Right now the 14th Amendment guarantees citizenship to anyone born to American parents or anyone born on United States territory. This second part is the problem, as it allows what have been called “anchor babies.” This involves a mother rushing to the United States just in time to give birth. Once the child is born, it becomes an American citizen. The mother then uses the child as a means to stay in the United States legally and eventually become a citizen herself.

It is estimated that 3.8 million illegal immigrants in this country (of the currently estimated 10.8 million -- 2 million left because of the recession) have children who are United States citizens.

Of this, John Sessions says:

"I'm not sure exactly what the drafters of the (14th) amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen."
Yeah, I kind of doubt that too.

The 14th Amendment was adopted in 1868 after the Civil War to grant citizenship to recently freed slaves. Had the 14th Amendment required that at least one parent be a United States citizen before the child could gain citizenship, then slaves would not have qualified as none of them were citizens. Thus, it provided citizenship to “all persons born or naturalized in the United States.”

At the time this was passed, it was never contemplated that Mexico would essentially fall apart south of us and that Mexicans would use this as a means of fleeing their country. Indeed, when this was passed in the 1860s, Mexico was quite prosperous. As for the rest of the world, it's not very likely that many pregnant women even traveled to the United States back then because a sea voyage would take far too long and would be too risky.

So what would be a good solution? Well, since the slavery issue is over, i.e. there are no more ex-slaves still needing citizenship, it is perhaps time to change the 14th Amendment to require birth to an American citizen -- as almost every other country in the world requires.

Of course, the Democrats will call this racist. . . but what don’t they call racist? (yawn) They will call it anti-immigrant, when it’s truly nothing of the sort, it’s anti-linejumper. They will call it anti-Hispanic, which only makes sense if you believe that all Hispanics got here illegally. Some are whining that this will create vague bureaucratic hardships for parents giving birth! As in they would need to provide proof of citizenship. . . like a drivers license. Big whoop. Others hide behind the idea “this won’t deter illegal immigrants,” but that’s just flawed reasoning, i.e. just because laws don’t prevent all murders doesn’t mean we should make murder legal.

The real problem here, however, is that this is probably a gimmick. The current rule resides in the Constitution. Thus, changing it will require an Amendment to the Constitution. That means 2/3 majorities in both chambers of Congress and 3/4 of the states would need to approve this. I can’t see that happening.

I suspect this is really a couple of RINOs desperate to prove that they aren't RINOs without having to actually do anything about it. So what they've done here is latch onto an issue that they know cannot be delivered. This gives them something deeply conservative to pound home to prove how conservative they really are without any fear that they will ever be called upon to actually pass it into law. That’s why it should not surprise you that Lindsey Grahamnesty and John McCain have signed up for this. Kyl isn't a RINO, but he seems to like trying to change the Constitution, having tried it before with both Graham and Diane Feinstein. Sessions is a strong conservative and has been battling illegal immigration, so that's probably why he's joined in this.

I don’t trust the motives of McCain or Graham, nor do I think this will work because of the impossible hurdles it must pass. I'm hoping it does. I really do. It’s time that this country fixed its immigration system and a good start would be to stop this practice of anchor-babying. But at this point, this looks like nothing more than the proverbial carrot tied to the string hanging just out of reach of the donkey, and that this intended simply to be dangled in front of us but never delivered.

But who knows? Maybe the RINOs have miscalculated? Maybe the people are upset enough about this issue that it will gain traction and eventually become law?

Wouldn't that be ironic, if the RINOs actually did something right?


Patti said...

if the rinos accidentally do something right, i think it would give them all kinds of traction in november. it's imperative we keep pointing out their misdeeds and allow them a boot to the ass as we vote them out.

Tennessee Jed said...

I agree with those conclusions, Andrew. It would be pretty tough to accomplish. The reality is, or should be, that just because you are born in the country, your parents are not citizens. They should not be granted status to become a citizen if they were here illegally when the child was born. But none of that is going to happen. As you say, all political posturing.

AndrewPrice said...

Patti, What I'm hoping is that the RINOs have signed onto this thinking it can't happen, and their pushing it actually causes it to happen. I doubt it. . . but I can hope!

AndrewPrice said...

Jed, To my knowledge, there is no country on the earth that says simply being born there makes us a citizen -- everyone requires that you are born to a citizen or that you go through a residency process. This is a hangover from slavery, and it should be changed to fix this "loophole." Otherwise, our system will continue to be a disaster as anyone can make themselves a citizen.

Writer X said...

John McCain is in the fight of his political life. He wants desperately to look Conservative. Don't believe his "good" intentions for a second. This is an easy emotional issue to latch onto, despite slim odds of passing with a Democratic-controlled Congress.

AndrewPrice said...

Writer X, I couldn't agree more. This thing has such a minor chance of passing (even in a Republican controlled Congress) because of the numbers needed, that this is clearly not something to get excited about.

That's why I think McCain and Graham have latched onto it. It's a consequence free way to sound tough. They get to pound home how much they want to stop this practice and they get to hold hearings and "talk conservative". . . and the whole time they know this isn't going to happen. That's why I see this as just another ploy.

Still, sometimes when you start a wave, no matter how minor, it can pick up steam and soon you get a tsunami. And right now the public is in a tsunami mood. So maybe this will get away from McCain and Graham? Now that would be funny!

StanH said...

My dear departed grandmother used to have a saying when she heard bellyaching, “cain’t never done nothin,” …please excuse the southern colloquialism, my grandmother was very wise. We have an opportunity that may never happen again. The last change to the Constitution was the 27th amendment, ratified in 1971. It can be done and we should take the opportunity to roll back the power of the federal government, and that section of the 14th would be a good start. As far as McCain and that dip shit Gramnesty, pure political chicanery.

I know this draws much consternation but, what the hell, repeal the 16th and 17th amendment. You want to neuter the federal government remove their play toys. I can dream as well…ha!

AndrewPrice said...

Stan, You can dream! :-)

I would very much like to see this change. I think it's important that a country has the power to decide who it wants as citizens. Every other country in the world has this power and uses it regularly. But for some reason, we're not allowed?

I think this is an extreme long shot because of the numbers needed. BUT it's worth a shot. I just don't accept this as a legitimate plan by the like of McCain/Graham, nor would I see this as a legitimate campaign promise.

I can and do hope this passes, but in terms of attracting me as a voter, a "promise" to do this is meaningless.

Writer X said...

Andrew, so true! And what a concept: McCain & Graham doing something meaningful? Right now they look like a bad boy band past its prime. It's gotten to the point where I can't even stand the sound of their voices.

AndrewPrice said...

Writer X, "a bad boy band past their primes"!! LOL!! That is the perfect description for them!

Ed said...

I can't stand McCain and this isn't going to change my opinion of him! I don't care for Kyl either. I know he's rated as very conservatives, but everytime I look, he's trying to give the government more power.

LL said...

The first thing to do is to stem the tide of illegal immigration (and by coincidence, MOST of the illegal drugs that come into the country) by hardening the border to authorized/legal crossing only.

A change to the 14th Amendment isn't a bad long term strategy, but as you said, it looks suspiciously like a move to garner votes and nothing else.

Sadly, closing the border is a function of the executive branch of government and barack hussein obama doesn't want to do that.

DUQ said...

I saw the headline and I had such hope. I guess I should have been more skeptical. What do you think are the real odds this can pass?

AndrewPrice said...

DUQ, If there was a time that this would pass, right now would be that time. But it's incredibly hard to amend the Constitution -- and rightly so.

You have to get 2/3 of the Congress which will be very hard with probably 90% of them being opposed -- even the "moderates" will find themselves pressured to stop this.

Secondly, you need 75% of the states to agree. That means 38 states. In other words, it only takes 13 states to stop this.

I suspect a strategy could be created to make this happen, but I don't know that they will do it right. I would suggest starting by framing the issue as anti-linejumping. Then push it in Congress with the idea that this is part of immigration reform (in other words promise the Democrats something in exchange for support and tell them that this probably won't happen anyway because the states will never allow it).

Then you need to hope for a massive wave of public support to push it through enough states.

(FYI, I would probably welch on the promise to the Democrats too. . . because they do that to us.)

AndrewPrice said...

LL, I agree entirely. The first step is to get a control over the borders to stop the flood of people. Everything beyond that is just bailing water out of a sinking ship.

And you're right about the drugs. As long as they can be walked or driven across a porous border, we are just spinning our wheels.

I agree that this change would be a good long term strategy (and really should be done). . . but it's not something that I would consider a valid promise from a politician until it actually clears the Congress and heads to the states. And, like you, I suspect this is nothing more that something to garner votes.

LawHawkRFD said...

Andrew: I'm glad to see how many of our readers (and you, of course) see through this ploy by McCain's "Mini-Me" Graham and amnesty RINOs. Amending the Constitution to limit birthright citizenship is a great idea that faces all the hurdles that the Founders intentionally built into the process. But anything's possible.

I would like to point out that I believe that Congressional legislation could solve the problem, but most likely won't. The part of the Fourteenth Amendment that is always quoted to protect birthright citizenship is well-known: "All persons born . . . in the United States . . . ." The part that is rarely quoted is "and subject to the jurisdiction thereof . . . ." And guess who determines who is subject to that jurisdiction. Yep, Congress. That jurisdiction could be rewritten legislatively to exclude the kind of "run across the border" birthright citizenship we've been suffering from for the past three or four decades. The legislation would also have to include wording that removes family fast-track "reunification" citizenship from the formula. My bet? They won't do it.

Alternatively, there is a third choice, and it's also one I can't see the cowards doing. Leave birthright citizenship in place, but amend immigration law so that those illegals who enter the US solely to drop an anchor baby are immediately deported in a summary proceeding. Take the baby or leave it, but you have to go. Heartless? Cruel? Yep. Practical solution? Yep. Sometimes you have to be draconian to accomplish the goal. And nobody in Congress would ever have the nerve to face the hearts and flowers violin section that would come into play over that kind of legislation.

My point? We'd better find a way to seal those borders, catch and deport illegals as quickly as possible, and eliminate the possibility of any further anchor-baby citizens. I'm not holding my breath, though.

JG said...

Sorry, whenever I see his name all I can think of are Rush Limbaugh's fake campaign commercials for Juan McCain. But yeah, I don't see such an amendment happening anytime soon, in this heated climate.

AndrewPrice said...

JG, I laugh about that too. Rush has always been great with parody and the things he's done have really stuck. Half the things I remember about Clinton still come from Rush. For example, every time I see Clinton I start hearing "can you blow you saxophone Billy boy..."

I don't think the Amendment will work because the Democrats currently see too much to be gained from keeping the borders porous. Once that changes, then I could see this passing -- or if their opposition really starts to hurt them at the polls. But until then, this is little more than a gimmick.

Still, everything has to start somewhere and maybe this is the beginning?

AndrewPrice said...

Lawhawk, I don't think that will work because that part expands on the rest of the clause to add that people not born on US soil can also be made citizens. A congressional law could change that definition, but could not use that definition to undo the rest of the clause, which is written in pretty unambiguous language.

I guess it's worth a shot, but I think that will just be shot down by the courts.

Sadly, I think that a constitutional amendment may be the only way this time.

As for the rest, I agree that they need to seal the border and stop the flood. If they don't do that, then all the rest is meaningless anyway.

AndrewPrice said...

Ed, Sorry, I missed your comment somehow.

I have similar reservations about Kyl. He prefers to use federal power to easily. The thing with Feinstein was an attempt to put "victim's rights" into the Constitution, which would create all kinds of problems. His heart is in a better place than the RINOs, but his methods trouble me.

LawHawkRFD said...

Andrew: I didn't say it would work, but I stand by my belief that it could work. The first portion is either/or (born or naturalized). The second portion is and. That gives the Congress the ability to determine jurisdiction over both. It can't change "birth" but it can change the circumstances of the birth (for instance, children born overseas in a foreign nation to American citizens or alternatively, children born to foreign diplomats in the United States who choose not to have children born here become American citizens).

My point was not so much to get into a disagreement on the meaning of the Constitution on the issue (there are legal scholars on both sides, and my view is the minority view, yours is the majority view), but rather that Congress will never try it in the first place. And for that reason alone, I am in total agreement that 1) a Constitutional Amendment is the only realistic way to change the rule, and 2) It won't happen (unfortunately).

AndrewPrice said...

Lawhawk, I'm not saying it's not worth trying, but I don't think it has much of a chance.

Beyond that, I agree with you completely -- our politicians have no will to deal with this issue, even though the people want it solved.

Even worse, I sense that this will be an attempt at exploitation more than legislation. I see this as something some supposedly on the right will use as fund raisers and as "safe" promises they can make that they know they will never need to pay on. And the left will play up the danger for their own fund raisers. It's twisted.

In reality, this is something that really does need to be done, but that's not how politicians work.

LawHawkRFD said...

Andrew: Sadly, to liberals "immigration reform" means "amnesty. To conservatives "immigration reform" means "immigration reform." To RINOs, "immigration reform" means "let's help the Democrats pass amnesty by pretending to oppose it with a never-gonna-happen Constitutional Amendment."

As a believer in prayer, I'm praying that the RINO plan backfires and the Amendment passes, but I also recognize that God frequently says "no" in answer to a prayer request.

AndrewPrice said...

Lawhawk, I share your prayer!

And you're right about the description of the various political groups. The RINOs just want to be liked. . . they should try being liked by our side for a change.

Ed said...

Don't worry about it, I'm not offended. I'm just glad that you guys answer comments. So many other blogs just ignore whatever you say.

MegaTroll said...

Strangely, I'm not surprised this is a fake out. As soon as I saw Graham, I knew something was wrong.

AndrewPrice said...

Ed, We like to respond to comments because we want everyone to share their views. We're here for a conversation, not just to put out articles.

AndrewPrice said...

Mega, Yeah, that's a huge tip off.

CrispyRice said...

Who needs a constitutional amendment when O can just sign an executive order??

Oh wait...

AndrewPrice said...

Crispy, Don't get me started on the executive orders! Ug!

Mobius said...

Had the same thought.

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