A Philosopher's Blog

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Fourteenth Amendment to the United States Constitution

Dropping the 14th

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As the debate over the debt ceiling rages on, there has been more talk of Obama using an executive order to raise the debt ceiling. The constitutional basis for this is, of course, the 14th amendment and (presumably) the executive power of the president.

The constitution states that “the validity of the public debt … shall not be questioned”, which would seem to indicate that the debt ceiling would need to be raised on pain of violating the constitution.

However, a case can be made that raising the debt ceiling is distinct from not questioning the validity of the public debt. To use an analogy, consider the matter of personal debt. A person could, it seems, decide that she will not give herself permission to go further into debt while at the same time fulfilling her current financial obligations. Likewise, the congress could decide that the debt ceiling should not be raised while still accepting the validity of the debt. This actually has considerable appeal-after all, going ever more into debt is hardly a wise financial move.

There is, of course, a rather serious problem with that approach: apparently we cannot pay our debts without going more into debt. Going back to the analogy, the nation seems to be like an individual who cannot pay her debts except by taking out more loans. While this is hardly a desirable solution, it might be the only viable solution-at least in the very short term. As a long term solution it is certainly not viable.

 

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14th & Debt

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The United States might be on its way to being a deadbeat nation. In addition to being shameful, this would also be rather damaging for our economy and our reputation. It would be nice to think that congress would not make something so serious into a political game, but such is the way of politicians these days: the only good greater than the good of their party is their own good. The debt ceiling provides an excellent cow to milk for political points, so it is being milked away.

Given that not addressing the debt ceiling would be a disaster, it is no surprise that there have been various proposals to deal with the matter. So far these have been what amount to political spackling paste and what is needed is something a bit more solid.

While Obama seems interested in reaching an agreement of some sort, Tim Geithner seems considering playing some constitutional hard ball. He recently made note of a key part of the 14th Amendment: the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for services in suppressing insurrection or rebellion shall not be questioned.”

While I am not a Constitutional scholar, this does seem to clearly state that the debt must be paid. As such, it would seem that Congress cannot pass any law that would forbid the paying of the public debt. This would, it seems, entail that a Republican maneuver that would result in a failure to pay said debt would be unconstitutional.

The Republicans have already anticipated that this card might be played.  Tim Scott has made it clear that such a move on Obama’s part could trigger the Republicans to launch an impeachment attempt. It is not clear at this point how that would play out and what sort of impact it might have. On the one hand, this move might seem to be absurd, given that Obama would seem to have the Constitution on his side (assuming he played it correctly). On the other hand, this sort of move by Obama could be reasonably regarded as an attempt to usurp the constitutionally specified powers of congress. From a purely practical standpoint, such a move is not without its risks and possible rewards. On the reward side, going after Obama might enable the Republicans to score political points for 2012. On the risk side, going after the president so as to prevent America from paying her debts might not play out favorably for the Republicans.

The Republicans can, of course, argue against an attempt to use the amendment against them. While it does that the debt “shall not be questioned” it also refers to the debt being “authorized by law.” This part would certainly give the Republicans room to argue. For example, they could contend that the debt in question was not authorized by law and hence can be questioned.

In any case, Congress needs to spend wiser, lower spending and increase revenue to address the debt problem. Unfortunately, while they seem to have the will to play the usual political games, they lack the will to do what must be done. To be fair, stepping up and cutting entitlements while increasing taxes would be political suicide. As a whole, Americans seem to generally want to run the country like we run our personal finances: on credit.

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Birthright Citizenship

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Most states in the United States are considering bills intended to limit birthright citizenship. Arizona is, not surprisingly, leading the way.

Supporters of such bills contend that illegal immigrants are having children here and these children become citizens. This then, it is claimed, creates a burden on the taxpayers as they have to pay for the services used by the illegal parents and their citizen children.

While this has a certain appeal, such proposed laws seem to be in clear violation of the constitution, specifically the 14th amendment. The relevant part of the 14th amendment  reads “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.”

This seems to be a clear cut matter with no room for meaningful debate. As such, many legal experts believe that any bills of this sort that get passed into law will be struck down as unconstitutional. That would seem to leave the birthright folks with one main recourse-changing the constitution via a repeal or another amendment to negate that part of the 14th amendment.

Then  again, it might be possible to pass laws that effectively nullify the 14th amendment for illegal immigrants while also being deemed constitution. To see that this is possible, consider the second amendment.

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.”

On the face of it, this seems to clearly state that the right to keep and bear arms shall not be infringed. This would certainly seem to entail that individual citizens have the right to posses (own) arms and that this shall not be infringed. However, there are numerous laws that infringe the right to keep and bear arms. These are justified in various ways, such as noting the alleged ambiguity as to whether the right is an individual right or a collective right. However, what it is important is that the right certainly seems to have been infringed or at least interpreted in a way that the infringements are not legally regarded as actually being infringements.

Presumably the 14th amendment could be infringed upon via similar methods. For example, it does seem that the wording does allow for  some interpretation that would make certain laws constitutionally viable.

First, consider the phrase  “and subject to the jurisdiction thereof.” It could be argued that someone who is within a state illegally is not thus subject to the jurisdiction of the United States, except insofar as being subject to the laws that specify that the person is present illegally and thus has no right to be within the jurisdiction of the United States. On these ground, the person would not be subject to the laws in the sense of being a subject of said laws. Rather, the person would be in violation of the laws. As such, children born to illegal immigrants would not fall under the 14th amendment and would thus not become citizens by this method.

Second, consider the phrase “are citizens of the United States and of the State wherein they reside.” Residing within a state can be taken as being a resident of a state. As Rahm Emanuel recently found out, what counts as being a resident can be a matter of some contention. However, at a minimum being a resident of state would at least require that the person has a legal right to be present in the state. Beyond that, of course, are various other requirements that vary from state to state. As such, to be a citizen of the state wherein they reside would require that a person be a legal resident (as defined by the state). This would certainly seem to open the door to states defining resident status in a way that easily excludes illegal immigrants and their children from being residents.

While these seem to be but word games, that is a legitimate game in the realm of law (not to mention philosophy). However, I do not expect any of the laws to pass constitutional muster nor to stand up to the inevitable challenges.

 

 

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Is the 14th Amendment Obsolete?

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One clause of the 14th Amendment grants citizenship to those born in the United States. To be specific, it states:

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.

From an historical standpoint, it was intended to ensure that the southern states did not deny American citizenship to the newly freed slaves. Not surprisingly the amendment was controversial in its day and was attacked on various grounds, including some rather racist views. Once again it is generating controversy. Or, to be more precise, certain people who are very worried about immigration are making it a focus of controversy.

Leading the attack on this amendment is Senator Lindsey Graham. Being a reasonably intelligent man, Graham has made a case for reconsidering this clause.

His first argument is that the amendment served its historical purpose and is no longer needed. This argument does have a certain appeal. After all, if a law is created to do X, when X is done it seems that there is no longer any need for the law. However, it is important to consider whether the law is still needed or not. After all, many laws have been created to address specific problems and then have gone on to become a part of enduring law.

Addressing this concern, Graham notes that “Birthright citizenship doesn’t make so much sense when you understand the world as it is.” Thus, his view is that this clause is no longer needed because it has fulfilled its intended purpose and there is currently no justification for keeping it.

His second argument builds on his first by adding that the clause is allegedly being misused to the detriment of America.

To support this claim, he contends that there are  “thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so that child will become an American citizen.” While this seems like hyperbole, it is an empirical claim and subject to verification.

For the sake of the argument, let it be assumed that people are coming here illegally with the express purpose of having children. In this case, this does seem to be a matter of concern. As he says, to grant their children citizenship does seem to be rewarding them for their illegal actions.

Graham goes on to make what might seem like an odd claim: he asserts that tourists come to the US on 90 day visas so as to have children who will thus be American citizens. While I was not aware that this practice was a common one, this is also an empirical matter.

Graham’s main worry about this sort of birth tourism is that it “cheapens American citizenship. That’s not the way I would like it to be awarded.”

While I do understand his view that American citizenship is an important and valuable thing, his criticism seems to be weakened by the fact that anyone born to an American gets to be an American. Aside from naturalization, all that it takes to make an American citizens is for at least one American to impregnate or be impregnated. So, if Americans Sally and Sam have a drunken hookup at a party and Sally gives birth to Andy, then Andy is an American.

If Graham is really serious about making American citizenship more valuable, then perhaps he should propose the approach taken in Heinlein’s Starship Troopers: full citizenship must be earned by serving in the military or other suitable public service. That would make citizenship less cheap.

I do agree that the law (even Amendments) should be subject to review and evaluation to see if they are still needed or if they are actually inimical to the good of the people. However, changing an Amendment should be a matter of some gravity. It should not be done merely on the basis of a current political controversy. In the case at hand, the motivation seems to be based in the current political posturing over immigration. There are also some concerns being raised that at least some people pushing for changing this clause are motivated by racism. Since the original opposition to the amendment was often motivated by racism, this is an interesting bit of irony.

I am, oddly enough, with Lou Dobbs on this issue: the Constitution should not be changed simply “because the result may be inconvenient to some and their political views.”

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