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.

A good night for Bush and a bad one for Trump

I hadn’t expected to watch Thursday night’s Republican debate. But it turned out to be available on my flight to San Fransciso, my credit card was twitching in my hand, and so…

For what it’s worth, I thought Jeb Bush was the winner and Donald Trump the loser. There were three adults on stage: Bush, Chris Christie and John Kasich. Christie positioned himself as a bad man for bad times, ready to cut your Social Security and take away your civil liberties, and that never appeals to voters. He certainly got the better of it stylistically with Rand Paul, but I suspect most Americans like the idea that the government can’t spy on you without a warrant.

Which leaves Bush and Kasich. Both were calm, amiable and, in my view, quite appealing. But Kasich, the governor of Ohio, seemed more like the guy who should be welcoming the candidates to his home state, not an actual candidate. Bush seemed happy to be there and fundamentally optimistic in his outlook. He made no obvious errors. It was the biggest event of the campaign so far, and he did well.

Now I realize that Trump has made a shameful and shameless buffoon of himself on numerous occasions, and his poll numbers have only gone up. But I thought the Fox News moderators did an excellent job of forcing him to talk about the fact that he’s not much of a Republican or a conservative. Not that he cared — he responded to everything with his usual bluster. But that, more than a litany of offensive Trumpisms, is going to take a toll on his campaign. He could run as an independent, of course, but I strongly suspect he’ll be a much-diminished figure six months from now.

The post-debate punditry seemed to focus on Marco Rubio. I agree that he didn’t embarrass himself, but he struck me as stiff and overly prepared in the manner of someone who was a little too young and inexperienced to be up there.

Of the rest, Scott Walker disappeared into a miasma of blandness, Ted Cruz should disappear, Rand Paul failed to meet even the extremely low level of plausibility set by his father (although, as I said, I’m mostly with him on civil liberties and his opposition to foreign intervention) and Ben Carson made me wonder what all the fuss was about two years ago.

And Mike Huckabee is just a hate-mongering disgrace.