The latest front in Stephen Miller’s personal and political war on the 14th Amendment, which began last January with President Trump’s executive order targeting birthright citizenship, centers on the equal protection clause.
In 1982, in Plyler v. Doe, a 5-to-4 majority of the Supreme Court held that it was a violation of the equal protection clause for states to deny to undocumented children the free public education they provide to legal immigrants’ children, who are themselves citizens. As Justice William Brennan wrote in his opinion for the court, “The 14th Amendment to the Constitution is not confined to the protection of citizens.”
Miller, whose crusade against immigration knows no bounds, wants Republican-led states to test the court’s commitment to its precedent. My newsroom colleague Lauren McGaughy has the report:
Stephen Miller raised the idea of ending public education funding for undocumented children in a closed-door meeting with Texas lawmakers in Washington last week, a move that would challenge a decades-old U.S. Supreme Court precedent, according to two people who were in the meeting.
Mr. Miller, President Trump’s hard-line immigration adviser, cited gridlock in Congress as he encouraged the state lawmakers to pass conservative legislation on immigration and other issues that are crucial to Republicans, hoping such action would spur on other red states and federal lawmakers.
The effect of this change, if it were to become law, would be to mark about a million children as members of a subordinate class — a lower caste excluded from mainstream society. Here, again, is Brennan: “By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”
Miller’s push to weaken the equal protection clause raises an important question: Why is he, and the MAGA right more generally, so intent on whittling down the 14th Amendment to essentially nothing?
To answer this, we can’t just look at the origins of the amendment — we have to see it in its larger political context. Before the 14th Amendment was a question of law and legal interpretation, it was a political text meant to bring about a particular vision of American society.
It seems obvious to say, but it’s worth emphasizing anyway: The 14th Amendment is tied directly to the 13th. The 13th Amendment states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It then adds, in section 2, that “Congress shall have power to enforce this article by appropriate legislation.”
Today, as a matter of legal interpretation, we read the 13th quite narrowly; it simply ends slavery. But the authors and ratifiers of the 13th Amendment saw it more expansively. To them, it was the foundation for the society they hoped to build. As Senator Henry Wilson of Massachusetts said in a March 1864 floor speech in support of the amendment:
Every word spoken, every line written, every act performed, that keeps the breath of life in slavery for a moment, is against the existence of democratic institutions, against the dignity of the toiling millions, against the liberty, the peace, the honor, the renown and the life of the nation. In the lights of to-day that flash upon us from camp and battlefield, the loyal eye, heart, and brain of America sees and feels and realizes that the death of slavery is the life of the nation! The loyal voice of patriotism pronounces, in clear accents, that American slavery must die that the American Republic may live!
To that end, the 13th Amendment was meant to outlaw hereditary caste as much as it was meant to end chattel slavery.
The anti-subordination aims of the 13th Amendment are why, almost immediately after ratifying it, Republicans in Congress leveraged their newfound authority under Section 2 to pass the Civil Rights Act of 1866, which established birthright citizenship, guaranteed equal rights, nullified the “Black Codes” — laws passed by the former rebel states to reimpose the conditions of slavery — and empowered the federal government to prosecute violations of civil rights.
President Andrew Johnson, a Tennessee unionist whose contempt for slaveholders was outweighed only by his hostility to Black Americans, vetoed the bill as both undesirable and beyond the scope of federal power. “In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted,” Johnson wrote. “They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.”
The Republican-led Congress overrode Johnson’s veto. It then began work on a new amendment, meant to embed in the Constitution the provisions and protections of the 1866 law, as well as write its vision of a free and equal society into the Constitution itself.
The resulting 14th Amendment, properly understood, is additive to the 13th. It flows from the vision of Gettysburg and Appomattox, of the Republican Party before, during and after the war: a society of equals, entitled to a broad set of rights and able to pursue their own visions of the good as far as their capabilities would take them.
A straightforward reading of the most important part of the amendment, Section 1, makes this clear. It says, in short: There will be a national American citizenship. That this citizenship will, except in very select cases, be established by birth. That all such citizens will be entitled to the “privileges and immunities” of American citizenship, and that — citizen or no — everybody on American soil is to receive the due process of law and the equal protection of the laws.
As Representative John Bingham of Ohio, one of the chief architects of the amendment, would write soon after ratification, Let it be “borne in mind that this is the government of men representing every people and kindred and tongue under the whole heavens, and that in the inception of our national struggle for representative government, in 1776, the declaration of the people was not that all white men are created equal, but that all men are created equal, and endowed by their Creator with the rights of life and liberty.”
The Supreme Court would eventually trim and limit this vision, eventually going, in Plessy v. Ferguson in 1896, as far as to permit the kind of subordination that the 14th Amendment was explicitly written to forbid. Indeed, this was part of the transformation of this amendment into a merely legal document — of removing its political content and treating it as a bare set of narrow requirements. The court would do the same to both the 13th and 15th Amendments, robbing them of their power to transform the American republic. And it did so as part of a larger political project: to reconcile the white citizens of the United States, to give the white South the power to manage its own “affairs,” and to support a national project of imperial domination. As a promise of equality for all who live under the flag, the 14th Amendment had to be written out of the constitutional order.
Both Miller and the MAGA right are engaged in the same kind of work as their political forebears. It is no wonder, then, that they want to gut the 14th Amendment, which was revitalized by the struggles of Black Americans and other groups throughout the 20th century. Theirs is a project of subordination at home and abroad; of the re-inscription of caste and the recreation of tiered citizenship based on race and nationality. And now, as then, the 14th Amendment stands in the way.
In other words, their project of constitutional change is in the service of a distinct political vision. Opponents should take note. It is not enough, as important as it is, to attack the legal basis of Miller’s efforts or debunk MAGA’s historical arguments. One must also bring a positive political vision to bear against their fantasy of reimposing rigid lines of caste, class and hierarchy.
The good news is that the 14th Amendment, and the larger Reconstruction story, is an important resource of an alternative vision — of an egalitarian society for all who claim this nation as their own.
What I Wrote
In this week’s column, I argued that whether at home or abroad, the president’s narcissism leaves him unable to see that his opponents have agency. As the aphorism goes, the enemy gets a vote, too.
Every presidential administration takes on the character of its principal, and this one is no different. Like Trump, the White House does not in fact seem to understand that other people have agency, too. It sees itself the same way the president sees himself: as the protagonist of the universe, with everyone else acting either as a supporting character or a nonplayable one — extras with no will of their own.
In the latest episode of my podcast with John Ganz, we discuss the wildly offensive 1998 conspiracy thriller “Mercury Rising.”
Now Reading
Bret Devereaux on the American war in Iran for his personal blog.
Neve Gordon on Israeli operations in Lebanon and Iran for The New York Review of Books.
Jason Rezaian on the Iran war for The New Yorker.
Katrina Manson on A.I. warfare for Wired magazine.
Eric Blanc on the mass action it took to end the Vietnam War for Labor Politics.
Photo of the Week
The view from a Washington hotel window.
Now Eating: Lemony Greek Chicken, Spinach and Potato Stew
For whatever reason I had a lot of potatoes in the pantry, and this was a very good use of them. I would go heavy on the herbs and I also would not shy away from garnishing your stew with good olive oil and a dollop of whatever yogurt sauce you want to make (a yogurt, olive oil, garlic and fresh herbs sauce works well). Recipe from NYT Cooking.
Ingredients
-
¼ cup extra-virgin olive oil
-
1 red or yellow onion, finely chopped
-
8 large garlic cloves, smashed and finely chopped
-
1 ½ teaspoons coarse kosher salt, plus more to taste
-
1 pound ground chicken
-
1 heaping tablespoon roughly chopped fresh rosemary (leaves of about 1 large sprig) or 1½ teaspoons dried rosemary
-
1 ½ teaspoons dried oregano
-
1 teaspoon red-pepper flakes
-
Black pepper
-
1 ½ pounds Yukon gold potatoes (about 3 medium), scrubbed and chopped into ½-inch chunks
-
6 cups chicken broth
-
Juice of 1 large lemon (about ¼ cup juice)
-
1 (8-ounce) bunch mature spinach, stems included, chopped, or 1½ cups frozen leaf spinach
-
¼ to ⅓ cup lightly packed roughly chopped dill
Directions
In a large pot or Dutch oven, warm the oil over medium heat. Add the onion, garlic and salt and cook, stirring, until the onion and garlic are softened and just starting to brown, 5 minutes.
Increase the heat to medium-high and add the chicken, rosemary, oregano, red-pepper flakes and several generous grinds of black pepper. Cook, breaking up the chicken into crumbles, until the meat starts to lose its translucent pinkness and is turning white, about 2 minutes. Add the potatoes and stir well to combine. Add the chicken broth and half the lemon juice, scraping up any browned bits on the bottom. Bring to a rolling boil and then lower the heat to maintain a very brisk simmer. Simmer until the potatoes are nearly tender, 15 minutes.
Add the spinach and dill, to taste. Continue to simmer briskly until the potatoes are tender, about 5 minutes more. Taste and add some or all of the remaining lemon juice, as well as more salt and pepper, if desired. Serve in bowls topped with feta and crushed pita chips.
The post Stephen Miller’s Latest Low appeared first on New York Times.
