14th Amendment

If you had asked me in 2008 whether I thought it possible that there would be a sustained, orchestrated effort in the first two years of the first term of the first African-American President to undermine and question the integrity of the 14th Amendment I would have answered "no way."  The 14th Amendment of course being one of the three major Reconstruction Amendments to the Constitution designed to correct the "three-fifths" of a person clause of the original Constitution and the entire racist body of law which grew up after its adoption. 

The recent news of the attacks on "birthright citizenship" promised in the 14th Amendment is not the first orchestrated attack we've seen on this influential Amendment, one which not just helped ended the institutional racism of the pre-Civil War United States, but which was used to dismantle 20th century segregation in the recent Civil Rights era.  Last year NDN led a national effort to push back against an effort by Senators Vitter and Bennett to knock undocumented immigrants out of the reapportionment process, something we and many others believed was a direct assault on this clause of the 14th Amendment

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State

Like the decision to grant people born here in the US citizenship, this clause was designed to prevent the institutional racism the practice of slavery created in the US from every reoccuring.  In the case of birthright citizenship, our nation made a decision to prevent any future group of American politicians from determing that any one group would be something less than the rest of us, as it had in the era of the "three-fifths" of a person clause.  Given our history, this seems, in hindsight, to have a particularly wise and thoughtful decision.

While in each case the target group of these recent radical assaults on the 14th Amendment were not African-Americans but recent Hispanic immigrants, is it really possible that in the early days of this new age of racial conciliation promised by the election of Barack Obama, that we are seeing a sustained set of attacks on the Constititional Amendment that has done more to promote equailty among the races in the US than other?  It is in some ways shocking, in some ways, perhaps, predictable.  Race has a tortured history in our proud nation, and it shouldn't be suprising that for some the experience of a non-white President might cause a particularly powerful reaction.

It is at moments like these that we need to stop using the word Republican or conservative to describe this type of approach to our politics.  Radical or reactionary is more apt.  And I am proud of Senator Harry Reid last year for standing up to the first sustained assault on the 14th Amendment, and staring it down, defeating it.  The question is - when are other political leaders, including our President, going to show the kind of courage Harry Reid showed last year and mount a sustained defense of the 14th Amendment and the politics that it ushered in the face of these reactionary attacks?

Update - I weigh in on this debate in an article in the the upcoming edition of the The Economist, now online here.

Update, 7pm - In a Washington Post Op-Ed, former Attorney General Gonzales comes out against the efforts to roll back the 14th Amendment.  It includes this powerful graph:

As the nation's former chief law enforcement officer and a citizen who believes in the rule of law, I cannot condone anyone coming into this country illegally. However, as a father who wants the best for my own children, I understand why these parents risk coming to America -- especially when there is little fear of prosecution. If we want to stop this practice, we should pass and enforce comprehensive immigration legislation rather than amend our Constitution.

From an editorial today in the NYTimes, "How To Waste Money and Ruin the Census" -

With the start of the 2010 census just a few months away, Senator David Vitter, a Republican of Louisiana, wants to cut off financing for the count unless the survey includes a question asking if the respondent is a United States citizen. Aides say he plans to submit an amendment to the census appropriation bill soon.

As required by law, the Census Bureau gave Congress the exact wording of the survey’s 10 questions in early April 2008 — more than 18 months ago. Changing it now to meet Mr. Vitter’s demand would delay the count, could skew the results and would certainly make it even harder to persuade minorities to participate.

It would also be hugely expensive. The Commerce Department says that redoing the survey would cost hundreds of millions of dollars: to rewrite and reprint hundreds of millions of census forms, to revise instructional and promotional material and to reprogram software and scanners.

During debates in the Senate, Mr. Vitter said that his aim is to exclude noncitizens from population totals that are used to determine the number of Congressional representatives from each state. He is ignoring the fact that it is a settled matter of law that the Constitution requires the census to count everyone in the country, without regard to citizenship, and that those totals are used to determine the number of representatives.

.....

Changing the survey now would be a disaster for the census and for American taxpayers. The Senate should defeat any and all attempts to alter or delay the 2010 count.

We here at NDN agree.  Later this morning, NDN wiill join 10 other groups in a press conference asking the Senate to reject the Vitter-Bennett effort to disrupt the census and reapportionment.  Last week I sent this letter to every Senator asking them to oppose these efforts in the days ahead. 

Check back later for more from our press conference.

In an essay yesterday (which is still running on the front page of the Huffington Post), Waking Up To the Coming Battle Over the Census, I talked about the very real possibility that the national Republican Party will mount a sustained effort to undermine the Census next year because of the Constitutional requirement for it to count all people, including undocumented immigrants.  One could easily imagine Rep. Joe Wilson, for example, leading this effort.

Yesterday we came across this story from the Salt Lake Tribune, which reports on a new bill just introduced in the United States Senate by Sen. Bob Bennett which attempts to identify the undocumented population and bar them from contributing to the reapportionment process.   From the news article:

Bennett, a Utah Republican who faces a tough re-election effort, introduced a bill last week that would add an 11th question to the Census forms asking if the person is a citizen or legal resident. He wants to exclude undocumented immigrants from the count used to apportion seats in the U.S. House.

"It does not make any sense for congressional seats and the Electoral College to be determined by a process that unfairly provides the advantage to those communities with high illegal populations," Bennett said in announcing his legislation.

The question Bennett raises, and is raised by the authors in the Wall Street Journal in my post yesterday, is should the undocumenteds be counted?  The 14th Amendment says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed

The interpretation of this question for these many years is that, yes, everyone must be counted.  And certainly the 2010 Census is designed to do just that.  But given how the national Republican Party played politics (successfully by the way) with the Census and reapportionment process the last two times the nation went through this, we should expect another run this time too.  And my guess is that despite the Constitutional requirement to count everyone most/many Americans would agree with Senator Bennett - why should places like Arizona gain at others expense through the presence of what will clearly be labeled "illegals?"

Which is why this debate could end up being so tough for those elected officials, including the President, required to defend the constitutionality of the current census strategy - because for many it will seem like it "makes no sense."

So how to avoid what could become a very ugly and divisive fight, pitting region against region, community against community, immigrants vs native born?

Pass comprehensive immigration reform prior to the start of the census count, making the "illegals" legal and finally fixing the broken immigration system once and for all.

Open to other ideas too.  Feel free to share 'em.  Anxious to hear your thoughts on this.