The American people, memorialized forever by our Constitution as the greatest “We” ever to speak univocally to posterity, are the benefactors of the greatest constitutional republic ever to exist. I believe that. I believe in American exceptionalism. It is in my blood. In truth, however, although it is seldom understood and even more seldom discussed, we have had three Republics, each corresponding to our three Constitutions. In my view, it is time for a Fourth.
The first Constitution and Republic were the products of the first constitutional convention, or as some historians call it, the Philadelphia Convention. Representing North Carolina during that long, hot Philadelphia summer of 1787 was an ancestral cousin of mine — a relation by a series of crooked turns in a dead-end branch of the family tree, the sort of which only Southern grandmothers can keep track. Alexander Martin was a federalist, favoring a strong federal government, in a state that was overwhelmingly anti-federalist. This may explain why, as family lore has it, he was the only Founding Father not elected to his own state’s convention. He was, however, twice governor, so I don’t suppose things turned out so badly for him.
A primary dispute of the Philadelphia Convention was the issue of slavery. How would the Southern states, their populations swollen with enslaved people who would never vote, count those owned bodies for purposes of representation in a way that did not unfairly politically disadvantage a non-slaveholding North. The result was the three-fifths clause — a compromise engineered to ensure that non-citizens would not unfairly bloat representation. Curiously, the issue is still alive, and yet the tables are turned. Now, so-called progressives, namely Democrats, oppose the addition of a “citizenship question” in the national census. Presumably, they understand that their “sanctuary” states will benefit from an unfairly swollen population count by counting non-citizens who can’t vote.
The second Constitution materialized fairly quickly in 1791, with the addition of the first ten amendments — the Bill of Rights. Interestingly, poor Alexander Martin’s name does not appear on the 1787 Constitution. Some suggest that Martin’s decision to leave the convention early was, among other things, motivated by his belief that a Bill of Rights was needed and was not forthcoming. Ultimately, although Martin did not serve on the North Carolina ratifying convention, the state rejected the 1787 Constitution because it did not contain a Bill of Rights. Perhaps Martin was vindicated.
As we know, the various compromises in the 1787 document did not satisfactorily put the issue of slavery to rest. The North’s victory in the Civil War precipitated a third Constitution, and a very different Republic. The third Constitution was created by the radical changes worked by the Thirteenth, Fourteenth, and Fifteenth amendments. The Thirteenth Amendment outlawed slavery. The Fifteenth Amendment, a substantial slight to the women suffragists who had been on the front lines of the abolition movement, gave only black men the right to vote. But the Fourteenth Amendment wrought the most lasting political and legal changes of all. It is the Fourteenth Amendment that guaranteed a floor of citizenship: that certain privileges and liberties were bound to be respected by all states. In other words, what it would mean to be an American citizen going forward, at least some essence of a meaning, would not change at the border of states. These guarantees of due process and equal protection, largely vindicated over time, are today the core of what it means to be American.
The first clause of the Fourteenth Amendment, the citizenship clause, is today, however, an unworkable, untenable relic. The clause is straightforward enough. It says that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside. Although it was designed to deal with a specific historical problem — the odious Dred Scott decision, which had held that black people, free or not, could never be citizens of the United States — it has done considerable harm in the twentieth and twenty-first centuries. Indeed, I think much of the political polarization the country now faces—the gridlock, the malfunction, the anger, and the downright meanness of contemporary politics, not to mention the danger to American culture as we know it posed by uncontrolled immigration—could be solved by a simple rewrite of the citizenship clause. It should be rewritten to say: All persons born to American citizens or naturalized as citizens are citizens of the United States and of the state in which they reside.
That simple fix would mean no more, or at least substantially different, immigration “crises” would cripple the government. It would mean that the Democratic party, seemingly so torn by the question of whether to represent the interests of actual citizens or of non-citizens, would have allegiances no longer thus divided. The country cannot be held hostage into the next century by the interests of interlopers.
A rewrite of the citizenship clause would mean an end to “anchor babies” and a substantial reduction in chain migration. It would mean that migrants could come here as workers, could be issued work visas, could benefit from the jobs they so obviously feel that only the U.S. can supply, but that the children born to them while they are here, too often in multiples, are not automatically citizens. And why should they be? The United States is an outlier in the world in such a nonsensical approach to citizenship that, never anticipated in 1865 to wreak such future havoc politically and culturally, is simply unmanageable in the twenty-first century. Romantics, who seem to think that the poem inscribed on the base of the Statue of Liberty is part of the Constitution, should be pleased. The world’s “tired and poor” in “huddled masses” can still come to the United States, but they and their progeny must do so fairly through asylum and merit-based immigration programs and, ultimately, through the process of naturalization, not by stealth and Democratic party fiat.
Alas, there is no legal way to effect such a change but by constitutional convention. How do we get such a convention? The Constitution provides that Congress may call one, but, as the Founders knew, a Congress unresponsive to the needs of the people—making a convention necessary — would be unlikely to do so. So, in their wisdom, they inserted a clause which provides that two-thirds of the state legislatures could call for such a convention. In the event, Congress would have to accede to their demands.
The talking heads tell us that because of contemporary political frustration we may be closer to this reality than ever before. Almost invariably, the oligarchs and their advisers from the American Ph.D. industry tell us that it would be a horrible idea. The Bill of Rights would be destroyed, they lament. They seem to think that We the People are both stupid and dangerous. It is certainly far from clear to me that a majority of Americans would throw over civil rights in favor of a police state. In any event, what has been proven rather indisputably of late is that the career politicians making the decisions are deceitful, mostly inept, and certainly dangerous. I’ll take my chances with the People.
At our constitutional convention, we can set our own agenda. Let us rewrite the Fourteenth Amendment’s citizenship clause and preserve our lately waning Republic and, in no small measure, our civilization.
Shannon Gilreath is a professor of law and a professor of women’s, gender and sexuality studies at Wake Forest University.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.