Miscellany:Repealing the Fourteenth Amendment to the United States Constitution

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The due process and equal protection clauses in the 14th Amendment interfere with the states' serving as laboratories of democracy and choosing the policies that they feel are best suited for their unique situations and characteristics. The U.S. Supreme Court forces all the states to adopt similar policies, through decisions such as:

  • Kennedy v. Louisiana, citing the 14th Amendment in support of the proposition that executing a man for raping a child is cruel and unusual punishment
  • Roe v. Wade, citing 14th Amendment due process rights as grounds for legalizing abortion nationwide
  • Obergefell v. Hodges, citing equal protection rights as grounds for forcing every state to recognize gay marriage

(Leftists, on the other hand, might decry the use of the 14th Amendment in District of Columbia v. Heller to force every state to legalize possession of guns.)

The purpose of the Bill of Rights was to prevent federal tyranny. State tyranny was viewed as not so serious of a danger, because people who feel the state they live in is infringing their rights can just move to another state. It's not as challenging as moving to a new country, which might require getting a visa and/or learning a new language.

People's voting with their feet in this way would tend to change national politics. States with better policies would tend to attract a larger number of people to move there, which would cause them to get more representation in the U.S. House and the Electoral College. Those more populous states could then be in a better position to block the less populous states from trying to regain their competitive advantage, without fixing their broken policies, by using the federal government to impose one-size-fits-all policies across the country. At the same time, the states' equal suffrage in the Senate, and juries chosen from local populations, would prevent the more populous states from getting too overbearing.

Now, though, the U.S. Supreme Court acts as a super-legislature, imposing precedents that, because of stare decisis, are hard to change even as old Justices die or retire and are replaced with Justices who would have decided their cases differently. We hear politicians and Supreme Court nominees describing decisions they think were wrong as "settled law" that shouldn't be messed with, now that so many other decisions have been based on those precedents. With the states' being less able to act as laboratories of democracy, we have less basis for comparison by which we could judge whether one policy works better than another. For example, leftists say that gay marriage is better, but how can they prove it, if we can't compare a state with gay marriage to a state without it, and see which state people prefer to live in?

As a result, ideological arguments consist largely of empty speculation about what policies would work better if states were allowed to implement them. Also, while Supreme Court justices are vetted based on how they would apply the 14th Amendment, there's no way to hold them accountable in the way that state legislators can be, since they serve a life term. So basically, the 14th Amendment broke what was once a decentralized, federalist scheme and caused stagnation in policymaking.

I'm not entirely sure why the drafters of the 14th Amendment felt the need to establish jus soli as a basis for citizenship. What's the point; why didn't they just grandfather in the freed slaves by saying anyone born in the U.S. before a certain date would be a U.S. citizen, and the children of U.S. citizens would also be U.S. citizens? The Constitution of the Philippines has a grandfather clause that's a little like that.

I knew a guy who came to the U.S. as a baby, worked in construction for many years, and ended up in federal prison for being in the country illegally. He'll get deported when his prison term is up. I don't see a good argument for why he should get treated that way, and a kid who was born in the U.S. of illegal immigrants should not only get to stay but be eligible to be elected President.

I'm not saying either of them should have been allowed to stay; I'm just saying that there's an arbitrary discrepancy between how the guy who came to the U.S. as a baby was treated and how a guy who was born on U.S. soil to illegal immigrant parents was treated. There may have been more to his story; for example, a lot of those who end up in federal prison for illegal reentry into the U.S. have a felony or even an aggravated felony on their record. They can get up to 20 years for that. Still, the guy born on U.S. soil to illegal immigrants could get convicted of an aggravated felony, and be allowed to stay.

It becomes like a game of freeze tag or capture the flag. If a woman can cross the border into the U.S. before a baby pops out of her hoo-ha, then that kid gets to stay in the U.S. for life and run President; but if she can't make it over the border in time, then he's subject to deportation. I don't know that there's a process for people who enter the U.S. illegally as babies to become citizens (other than the DREAM Act, which hasn't passed yet).

Another beef I have with the 14th Amendment is that it punishes secessionists and those who lend money to their cause. The Constitution is a couple centuries old, a lot of its provisions haven't accomplished what the founders hoped (for example, grand juries are failing to serve as much of a safeguard), and it might not be such a bad idea for the union to split apart (or for states to at least have the ability to threaten to break away), so we can start from scratch and come up with a new Constitution, or one or more new Constitutions for different regions. We're at a point now where it's pretty hard "to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness" through the amendment process, as Trump acknowledged when he rejected the idea of trying to change the 14th Amendment; but it's hard for the U.S. to say that Americans can't secede, while supporting secessionists in places like Kosovo.

One of the interesting aspects about the Confederate States Constitution was that it included additional safeguards against federal encroachment on states' rights, based on lessons learned from almost fourscore and seven years of living under the U.S. Constitution. The U.S. Constitution had likewise included safeguards (such as a very limited definition of treason) based on lessons learned from living under British rule. Maybe it's time for another iteration of this process.

Therefore, the 14th Amendment should be repealed.

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