Nation to Campus: Subjectivity and the Constitution

By on November 13, 2018

On the surface, President Trump’s call on Oct. 29 to end birthright citizenship via executive order is undeniably a blatant violation of the Constitution.

Section 1 of the Fourteenth Amendment clearly states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

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So does the president have the ability to override this right with the stroke of his pen? Not quite.

According to many legal scholars, the language of the Fourteenth Amendment is seen as an explicit protection of birthright citizenship, and House Speaker Paul Ryan agrees.

“You obviously cannot do that,” Ryan said in response to the president. “I think in this case the Fourteenth Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

However, conservative legal scholars have pointed out five key words in question: “subject to the jurisdiction thereof.”

Supporters of Trump’s proposal argue that this phrase has been misread, as the authors of the Fourteenth Amendment did not intend to give citizenship to children of temporary visitors and other noncitizens. They point to birth tourism–the process of coming to a country for the purpose of giving birth to an “anchor baby” who would become a citizen.

Only about 30 countries worldwide currently provide birthright citizenship, as many European nations have modified their requirements in response to this trend over recent years.

Not so easy in the United States.

Ratified in 1868, the text of the Fourteenth Amendment was included to extend citizenship to freed slaves and their children. The Constitution is virtually silent on whether or not the language of the amendment extends citizenship to anyone born in the United States, even if their parents are here illegally.

In fact, the language was derived from the 1866 Civil Rights Act, which provided that all persons born in the United States, “not subject to any foreign power” would be considered citizens.

In the Slaughter-House cases of 1872, the Supreme Court held that the qualifying phrase in the Fourteenth Amendment was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Again in 1898’s U.S. v. Wong Kim Ark, the court only held that a child born of lawful, permanent residents was a U.S. citizen.

So, is the Constitution up for debate? 

Conservatives have long cited the DACA (Deferred Action for Childhood Arrivals) program, President Obama’s executive order to provide pseudo-legal status to children brought into the country illegally, as unconstitutional. Today, discussion of the constitutionality of citizenship is more alive than ever.

If Trump’s supporters now claim the meaning of the Fourteenth Amendment has been altered to harbor children born to illegal aliens, are conservatives the ones who view the Constitution as a living, breathing document that changes with the times?

The common leftist argument for gun control is a helpful means of comparison.

The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Liberal interpretation of the Constitution has been such that the document changes as society changes, and the right to bear arms was introduced long before the introduction of assault rifles and other automatic weapons.

Arguably, the Second Amendment was written at a time when the right to bear arms was less about the individual and more about the militia and the prevention of needing a standing United States army.

This all changed after the landmark 2008 Supreme Court case, District of Columbia v. Heller, in which the court ruled any person could bear arms as a means of self-defense, overturning a longtime precedent that the right of individual citizens to bear arms only existed within the context of participation in the militia.

In the political mainstream, the Constitution has been manipulated by elected officials to apply to specific political agendas.

However, constitutional violations aren’t limited to just the political sphere.

On a daily basis, Sixth Amendment guarantees to a “speedy and public trial” are ignored when criminal defendants face lengthy pretrial detentions.

In fact, varying state laws can change the rights criminal defendants are entitled to, further fueling the state versus federal law conundrum.

The process of criminal prosecution and the legal controls upon its timing are decided mostly by prosecuting authorities, that is, the police and the prosecutor.

A vague description of a “speedy” trial has in turn allowed prosecutors to delay trials for any number of loosely defined “practicality reasons.”

Gridlock and “confirmation wars” stemming from rampant divisiveness in Congress has additionally roiled the process of judicial appointments that could help turn cases over in a more timely fashion.

Such detentions have been shown to negatively impact communities for generations, and additionally may violate due process highlighted in both the Fifth and Fourteenth Amendments.

Meanwhile, the system of our electoral college outlined in the Twelfth Amendment has been continuously challenged by politicians when elections don’t go their way, as First Amendment concerns have erupted across the country – from local school boards all the way up to the relationship between presidents and the media.

Constitutional debates revolving around censorship of conservative voices on Facebook, Twitter and other social media outlets has ignited conversation regarding violations of rights to freedom of speech and expression.

Liberals have argued President Trump continually undermines the First Amendment in his outspokenness against what he considers the “fake news” media, while conservatives remember President Obama’s contentious relationship with Fox News, which he lamented was “entirely devoted to attacking [his] administration” in 2009.

While friction between presidential administrations and the press is commonplace, implementing policy is a completely different story.

It would be foolish not to recognize that each branch of our government is riddled with human error, but we must be able to depend on the stability of our American institutions.

To avoid utter anarchy, we have no other option than to look to the rulings of the Supreme Court and demand our elected officials engage the proper legal channels when challenging such rulings in enacting policy.

It’s truly miraculous that our founding fathers created a document that has guided the direction of the United States since 1787, but at the rate we’re going, the Constitution will soon become too subjective to hold any relevance.

When it comes to the Constitution, it’s all or nothing. We can’t cherry pick which amendments we choose to abide by.

Republicans can’t simultaneously cite constitutional integrity in defense of the Second Amendment while trying to abandon the Fourteenth.

Likewise, Democrats can’t cry foul at those questioning the Fourteenth Amendment while attempting to undermine or in some cases even repeal the Second Amendment altogether.

It’s decision time. We simply can’t have it both ways.

If the most important document in our nation’s history can change its meaning with each political inkling, partisan interpretation may soon render it obsolete.

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