Trump did not say the 14th Amendment is unconstitutional

(Courtesy of the Byrom-Daufel family) Most 19th Century Chinese immigrants were single men, but a few families lived in the Portland area. The Byrom-Daufel family of Tualatin retained this portrait, but descendents no longer have the Chinese family name. Scan from print.
Chinese immigrants in Oregon. Birthright citizenship dates to 1898, when the Supreme Court cited the 14th Amendment in overturning a California law. Photo published by The Oregonian, courtesy of the Byrom-Daufel family.

My Facebook feed is filling up with posts from liberal friends informing me that Donald Trump is, among many other bad things, an ignoramus when it comes to the Constitution.

Trump allegedly stepped in it on Tuesday, telling Bill O’Reilly of Fox News that the 14th Amendment wouldn’t necessarily impede his rather horrifying proposal to deny citizenship to the children of undocumented immigrants born in the United States.

Cue the outraged headlines. “Donald Trump says 14th Amendment is unconstitutional” is the takeaway at Yahoo Politics. Or consider this, from Politico: “Trump to O’Reilly: 14th Amendment is unconstitutional.” Or Mother Jones: “Trump: The 14th Amendment Is Unconstitutional.”

Of course, it’s fun to think Trump is such a buffoon that he doesn’t realize something that’s part of the Constitution can’t be unconstitutional. All he’d need to do is spend a few minutes watching “Schoolhouse Rock!” videos on YouTube to disabuse himself of that notion.

But that’s not what Trump said. In fact, Trump made the perfectly reasonable assertion that the federal courts may be willing to revisit how they interpret the 14th Amendment. Trump told O’Reilly:

Bill, [lawyers are] saying, “It’s not going to hold up in court, it’s going to have to be tested.” I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree…. But many of them agree with me — you’re going to find they do not have American citizenship. [Quotes transcribed by Inae Oh of Mother Jones, whose story is more accurate than the headline under which it appears.]

Birthright citizenship is not exactly a new issue. Jenna Johnson of The Washington Post noted earlier this week that, back in the early 1990s, none other than future Senate Democratic leader Harry Reid supported reinterpreting the 14th Amendment in order to end automatic citizenship — thus confirming a remark made on the campaign trail by Scott Walker, one of several Republican presidential candidates who have joined Trump in opposing it.

In searching the archives, I couldn’t find a specific reference to Reid. But The New York Times reported in December 1995 that House Republicans and some Democrats supported an end to birthright citizenship, with most arguing that a constitutional amendment would be needed and others claiming that legislation would suffice. Any attempt to enforce such legislation would have triggered exactly the sort of court challenge that Trump envisions.

And it’s not as though the 14th Amendment has stood immutable over time. After all, it wasn’t until 1954 that the Supreme Court ruled, in Brown v. Board of Education, that the amendment’s guarantee of “equal protection of the laws” forbade segregation in the public schools.

Birthright citizenship was recognized by the Supreme Court in 1898, three decades after enactment of the 14th Amendment. In that case, according to the 1995 Times article, the court overturned a California law that had been used to deny citizenship to children born in the United States whose parents were Chinese immigrants.

Trump’s rhetoric represents the worst kind of nativism, and he should be held to account for his words. But what he’s actually saying is bad enough. When the media exaggerate and distort, they hand him an undeserved victory.

Also published at The Huffington Post.

Three questions about those legal challenges

This isn’t fair — I’m going to be on the road until tonight, and I managed to mess up the WordPress app on my BlackBerry. So I won’t be able to approve comments for quite a while. But I do have three questions about legal challenges to the health-care law, and I’m hoping someone can answer them here.

1. Critics say the requirement that everyone must buy health insurance from a private company is unconstitutional. Yet no one to my knowledge has ever even raised that issue with regard to the Massachusetts law, which has the same requirement. Is there something different about the Massachusetts Constitution?

2. Under federal law, we are required to invest our money in a government-controlled retirement system (Social Security) and medical-insurance system (Medicare). Why is that constitutionally permissible if being required to buy insurance from private companies is not?

3. Is it even correct to call the insurance mandate a “requirement”? If you refuse to buy insurance, you simply pay a penalty of some sort, right? You’re not being branded as a criminal or even a civil offender as I understand it.

Thinking about “the religious test”

Chris Lehmann repeats an oft-heard fallacy in an interview conducted by Ken Silverstein for Reacting to Barack Obama’s and John McCain’s appearances with evangelical minister Rick Warren last Saturday, Lehmann says:

The only important issue about Saddleback is that the Constitution specifically forbids any religious test for office, so why are you having an evangelical minister asking the two candidates about their relationship to Christ? But the people who are in charge of delivering useful information to the public about the process have no historical frame of reference. They literally don’t know what they’re doing.

Lehmann’s right about what the Constitution says regarding a religious test, but he suggests that it somehow applies to the media and to voters. It does not. Here’s the exact language, from Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That’s pretty clear: the government may not establish a religious test for candidates. If Congress were to pass a law stating that only believing Christians may run for president, or that practicing Muslims may not, then that would be unconstitutional under Article VI.

If, on the other hand, a voter decides he will not consider any candidate who isn’t an evangelical, that’s not only his right, but it’s perfectly in accord with both the letter and the spirit of the Constitution. Likewise, Rick Warren is free to invite the candidates in for a talk; the candidates are free to accept or decline; and the media are free to cover it or not.

Needless to say, this is a relevant issue, as Mitt Romney remains the subject of some speculation as to whether John McCain will choose him as his running mate. Some evangelicals have made it clear that they would object vociferously because Romney is a Mormon. That sentiment may be offensive to you and me, but it’s not offensive in the least to the Constitution.

If you think about it, we’ve all got our religious tests. Would you vote for a so-called Christian who believes we should hasten the Apocalypse through nuclear war? Of course you wouldn’t. The Constitution says such a person can run for office. It doesn’t say you have to vote for him. Neither does it say the press and the public can’t make an issue of his beliefs.

The Constitution is supposed to be a check on the government, not on the people.