Cross-posted from my guest commentary in Democracy for New Mexico (previously published).
A scurrilous legislative amendment introduced by Republican Senators Vitter of Louisiana and Bennett of Utah, intended to intimidate Latinos, both documented and undocumented, and to discount the population of undocumented persons resident in the United States for purposes of apportionment of representation was recently introduced into the United States Senate. A new city administration in Albuquerque seems poised to roll back that community’s “sanctuary city” status and assume a harassment campaign against undocumented Latinos. Nationally, there has been a sustained campaign of harassment and intimidation by conservative partisans of Latinos, both citizen and non-citizen.
In its continuing toxic over-reach and intent to mount a campaign against our Hispanic neighbors, the Republican Party, is launching yet another series of assaults on the pillar of human rights and dignity, the provisions of the United States Constitution itself.
We must not let these attacks go unanswered or let them slide into effect under the radar. Progressives and others who believe in the human rights of all and the rule of Constitutional law must respond and stop these attacks and the erosion of the rights of all us.
In a statement issued this week, the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund warns us, “The proponents of the Vitter-Bennett amendment hope to exclude undocumented residents and possibly all non-citizens from being counted in Census 2010 for the purposes of apportioning Congressional seats. This would thwart the clear language in the U.S. Constitution which mandates a count of all of the nation’s residents for apportionment purposes… It represents a reckless departure from decades of our nation’s Census practices, intended to ensure that every 10 years, we have the most accurate portrait possible of America.”
Section 2 of the 14th Amendment reads, “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.” This sentence is simple enough, and it means what it says. There is no Constitutional exemption for Latino residents, either documented or not documented. If the issue is voting rights, the Amendment does not permit non-citizens the right to vote. If the issue is children of undocumented workers who were born in the United States having a right to vote and other benefits of citizenship, the answer is clear, the Amendment says they are free and equal citizens. This question was further settled by the Supreme Court in 1898 in the case of the United States vs. Wong Kim Ark, in which the court stated that the children of non-citizens born in the United States were citizens. Should Mr. Vitter and Bennett choose to change law, the Census enabling legislation, required by law, is not the route to take, but rather through Constitutional Amendment.
We all support a legitimate and secure franchise, legal elections and secure borders. However we also support the constitutional rule of law and must condemn any cynical attempt by the GOP to diminish the rights of all, or take us back to a time when persons could be considered “3/5 a man.” The leaders of the Republican Party have chosen to travel down a cynical, demagogic and narrowly political road that trades on petty fears and seeks to divide people through bigotry, racism, xenophobia and “wedge issues.” We must oppose them.
The 14th Amendment makes a clear distinction between “persons” and “citizens,” yet extends to both the equal protection of laws so long as the individual is resident within the borders of the United States. We must not falter on this point. It is the opinion of some so-called “conservatives,” including a few Justices of the Supreme Court that the 14th Amendment was “intended” to apply only to those ex-slaves emancipated by the Civil War. Nothing could be further from the truth. The 14th Amendment is intended to extend to all a doctrine of universal human rights.
During the Congressional debates leading to ratification of the Amendment, conservative opponents charged that if ratified the Amendment would guarantee equal rights “not only to Negroes, but to Chinamen and gypsies!” They were correct. We need go no further that the chief sponsor of the 14th Amendment, Representative Thaddeus Stevens of Pennsylvania, the Reconstruction Congress’ majority leader to find the “original intent” of the Amendment.
Perhaps contemplating these contemporary attacks, in an address to Congress on March 18, 1868, shortly following ratification Stevens said, “Who can doubt that if you put such power into the hands of the best men it will be abused, unless restrained by equal laws? Why should one man be more responsible to his temporal or eternal governor than another, and be punished by different rules?”
That it was the intention of Stevens and the other sponsors of the 14th Amendment for the Constitution to reflect their desire for universal dignity and equal treatment cannot be denied.
Stevens said, “I know that when our fathers came to frame the Constitution, slavery having increased, they were obliged to postpone some of those universal principles, and allow individuals and municipalities to violate them for a while. I thank God that necessity no longer exists. The law‑givers of America are now as free to act as Sampson when the fire had touched the flax. May they never again be beguiled by any conservative Delilah to suffer their locks to be shorn and their limbs to be bound by the withes of a twisted Constitution.”
“The laws which were then intended to be universal must now be made universal. The principles which were intended to govern the whole of American nationality, must now be made to cover and control the whole national action throughout this grand empire. Towns, corporations, and municipalities may be allowed their separate organizations not inconsistent therewith, but must not incorporate any principles in conflict with those great rights, privileges, and immunities. What are those rights, privileges, and immunities? Without excluding others, three are specifically enumerated—life, liberty, and the pursuit of happiness. These are universal and inalienable.”
This then, the “original intent” of the framers of the 14th Amendment, is crystal clear. Clear enough even to the leaders of the Republican Party, or for Mr. Vitter or Mr. Bennett, or for the cynical “conservative” activists to understand. The 14th Amendment is a declaration of equal human rights and dignity for all who reside within the borders of the United States, and we, the inheritors of their achievement must defend them and the law.