Repeal 14th Amendment? Think a little harder - East Valley Tribune: Opinion

Repeal 14th Amendment? Think a little harder

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Posted: Wednesday, August 4, 2010 2:07 pm | Updated: 3:35 pm, Sun Oct 10, 2010.

The Founding Fathers intentionally made it difficult to change the U.S. Constitution. Proposed amendments require approval by two-thirds of both the House and Senate and their adoption requires ratification by three-fourths of the states. Thus, the Constitution is rarely amended, only 27 times since 1789.

Nonetheless, a growing group of influential Republican lawmakers, GOP Senate whip Jon Kyl of Arizona and Sen. Lindsey Graham of South Carolina, to name two, are saying the 14th Amendment should be repealed or rewritten. The idea was given greater credence this week when Senate Republican leader Mitch McConnell of Kentucky said, "that's something we clearly need to look at."

The 14th Amendment was ratified in 1868 to clean up some of the legal mess left by the Civil War. The amendment has five sections, some of them now archaic -- the federal government was not responsible for debts incurred by the Confederacy in the course of the Civil War and former slaveholders would not be compensated for the emancipation of their slaves.

It is Section 1 that preoccupies the Republicans. That section states that "all persons born or naturalized in the United States" are citizens of the United States. The section also guarantees to all people "the equal protection of the laws."

Constitutional historian Richard Beeman writes in his newly issued Penguin Guide to the Constitution: "Perhaps the most significant and far-reaching amendment to the Constitution, the Fourteenth Amendment is viewed by many scholars and jurists as the provision of the Constitution that has brought the principles enunciated in the preamble of the Declaration of Independence into the realm of constitutional law." In other words, equality, life, liberty, property and pursuit of happiness were now constitutionally protected rights.

Repealing the right to equal protection of the laws does not seem like particularly smart politics, but the proponents of repeal are after the clause that makes all persons born in the U.S. citizens of the United States. Absent that protection we can deport the U.S.-born children of illegal immigrants along with their parents.

There are anecdotal tales of rings that, for a large fee, bring pregnant women to the U.S. so their children can get automatic citizenship. If this is so and the legal children of illegal immigrants are indeed such a big problem, there are surely statutory and regulatory ways of dealing with it other than taking a hammer to the "most significant and far-reaching amendment."

This sudden Republican preoccupation with the 14th Amendment is less about the Constitution than it is about keeping the immigration issue boiling until the November elections. The Founding Fathers erected high hurdles to the amendment process to protect the Constitution from being rewritten because of passing passions. And that's what this is -- a passing passion and not a very honorable one.

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