Torture and the 14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

- Section 1 of the 14th Amendment to the US Constitution

If you listen to the Republicans, people are streaming across the border to have babies which become US citizens.

To counter this “danger” presented by these “anchor babies” the Republicans are pulling out all the stops to repeal Section 1 of the 14th amendment to the US Constitution. Sen. Lindsay Graham (R-SC) is the latest to jump on this bandwagon.

The 14th amendment was one of the three great reconstruction amendments. passed after the Civil War. It creates a hard bright line defining who is an American citizen.

It’s simple, if you are born here you are one.

The framers included no description in the constitution of what defined a citizen. But then again they did not explicitly define other basic freedoms we take for granted. To them, it went without saying that citizens of a Republic would automatically enjoy those freedoms as part of their natural rights. Even after these rights were specified in the constitution as a price for its passage, everyone assumed that if you were in America you were a citizen.

That is until 1856 and the US Supreme Court’s decision in Dred Scott.

In Dred Scott, the Supreme Court denied the rights of citizenship to free African Americans and reduced the legal standing of slaves to nothing more than that of a chair. It was the first time that a branch of the US government moved to deny citizenship to any group of free people.

After the Civil War, Section 1 of the 14th Amendment was designed specifically to overturn Dred Scott. It clearly defines who is a citizen and that all citizens have rights against the power of the government.

So why tinker with the 14th Amendment?

The obvious answer is politics.

The Tea Party is running the Republican party and anti-immigrant xenophobes are a powerful wing of the Tea Party movement. Sen. Graham came out in favor of altering birth-right citizenship because he is up for re-election in 2012 and is already under pressure from the Republican right in South Carolina.

He can score a lot of points with his base and shore up his right wing without paying a political price. After all, voters who support birth-right citizenship aren’t going to vote Republican anyway so there is no great risk involved.

Or is there?

The short term risk is not to any one Senator or Congressman’s seat. The risk is to the long term principles of the country and how we define ourselves.

In politics, fringe ideas can become mainstream, and once they are mainstream they become policy or law. If these ideas don’t make it to law, they can become an accepted part of the country’s philosophy.

Racial integration, supply side economics, Charter schools and same-sex marriage are all ideas that were once fringe ideas that are now mainstream. Their supporters moved these ideas to the mainstream incrementally, by creating a smaller framework for debate off the political center. This made it easier to win support for each of these ideas. Winning these smaller debates moved the political center towards these idea’s eventual acceptance. But if the framework of those debates had been too far from the center, supporters would have created stiff opposition which would have caused those ideas to fail.

National health insurance is a good example of this. The Clinton national health insurance initiative failed not because of the “Harry and Louise” ads, but because the debate was far off the political center of the time. So it was easy to paint it as extreme, stir up opposition and defeat it.

Fifteen years later we now have “health care reform” not “national health insurance.” The topic itself shows how the debate shifted. Obama and the Democrats won because they made the debate about health insurance access, which was left of center, but gave up on public option which was too far left of center. Obama’s reforms are now the new center, which is closer to the defeated public option proposals. As a result, in the future, it will be easier to debate those proposals again and turn them into law.

The risk in the debate on the 14th Amendment is that it will follow the path of the debate on torture, which lead Americans down the road from moral outrage to apathetic acceptance. Between 2002 and 2010, the discussion around torture went from should we do it, to how we should do it, to acceptance.

Initially, supporters of torture successfully moved the debate from the high moral ground of their opponents and staked out an acceptable position as far right as they could. The debate became less about enforcing and adhering to international law and more about what would you do if a bomb were ready to go off? Would you follow the law, or slap the bomber silly until he confessed? Once supporters of torture got the country to believe that slapping was the way to go, the rest was easy.

Now torture is accepted, and is not even part of the public discourse.

In the torture debate the danger was the terrorist. Now the danger is the illegal immigrant who comes to the US to have a baby. Never mind that according to the US Census Bureau, in 2008 only 8,000 “anchor babies” were born in the US.

8,000 babies is equal to 160 babies per state. This is hardly a dangerous wave.

But to protect us from this “danger” politicians want to redefine who gets to be a citizen and enjoy all the rights that citizenship brings. They know they won’t be able to repeal the 14th Amendment. But they learned from the “torture debate” that by pushing an extreme solution into the main stream debate today, tomorrow they can successfully pass laws narrowing the right of citizenship.

That is more dangerous to the fabric of America than 8,000 “anchor babies.”

"...the door's wide open, it's going to happen, whether you like it or not!"

"I do not believe it's appropriate for me, as mayor of San Francisco, to discriminate against people. And if that means my political career ends, so be it."

- Mayor Gavin Newsom in February 2004, on his decision to allow same sex marriage in San Francisco. (http://www.cnn.com/2004/LAW/02/22/same.sex/index.html)

"This is an overwhelming record that supports the fact that individuals are being hurt ... and that California has no rational basis for continuing the discrimination.

- Former Solicitor General Ted Olson, in arguments for overturning Proposition 8; California’s Ban on same sex marriage.

In January 2004, as the Presidential election was getting underway, San Francisco Mayor Gavin Newsom (D) ordered City Hall to issue marriage licenses to same sex couples.

Newsom took heat for handing the Republicans such a volatile social issue to use against the Democrats. Many blamed him for Kerry’s loss in key swing states, and the consequent re-election of President Bush. Mayor Newsom never wavered from his decision and stood by it even under intense pressure by Democrats.

As a direct response to Newsom’s actions, in 2008, California voters approved Proposition 8, banning same sex marriage, with 52% of the vote.

What a difference two years makes.

On 08/03/10, Chief US District Judge Vaughn Walker (a Reagan appointee) of the 9th Circuit of Appeals, overturned Proposition 8. This ruling is the first time that a Federal Court has ruled that a State proposition on same sex marriage violated the US Constitution.

Judge Walker ruled that voters simply couldn’t legislate a personal moral choice without a compelling interest by the State to do so. The proponents had not, Judge Walker ruled, proved such an interest. He stayed the implementation of his ruling to give supporters of Proposition 8 a chance to appeal.

On Thursday, 08/12/10, Judge Walker lifted his stay, effective Wednesday 08/16/10. He ruled that as the State had decided not to defend Proposition 8, this left its defense in the hands of private groups. Judge Walker ruled that those groups may not have standing to argue the appeal. Even if they had standing he said, they had not shown that they could prevail. (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/12/MNFA1ERRMV.DTL).

In 2004 the GOP embraced opposition to same sex marriage with open arms. In 2010, other than the expected howls of outrage from the far Right, the GOP has stepped away from this issue.

Why?

It is no accident that big cultural shifts happen in boom times. Whether it is women wining the vote in the roaring 20’s or the civil rights movement in the 60’s, people can focus on these issues when they feel safe and secure.

Consequently, in boom times, the main difference between political parties becomes social issues. In 2004 the economy was ridding the housing bubble and people were living well. The Republicans were able to use social issues to define the difference between Bush and Kerry and keep the White House.

In bad economic times, voters couldn’t care less about the culture wars. The unemployment number becomes the issue a challenger uses against the incumbent. When someone is out of a job, out of benefits and out of their house, they don’t care who their neighbor marries. They only care about what stands between them and a job.

In 2010 the Republicans are openly stepping away from social issues. A few hard right think tanks and commentators railed against Judge Walker’s ruling, but the Republican Party itself instructed candidates to ignore it and keep hammering away at the economy.

Same sex marriage is a generational issue.

Younger generations are more likely to support same sex marriage than older generations. In a CNN poll released on 08/11/10, (http://i2.cdn.turner.com/cnn/2010/images/08/11/rel11a.pdf) 49% of respondents said gays and lesbians currently have the right under the US Constitution to marry. But there is a 20% gap between generations. 38% of respondents older than 50 said they do, while 58% of respondents younger than 50 said they do.

When asked if gays and lesbians should have the right to marry, 52% of respondents said yes. Again there is a 20% gap between generations. 41% of respondents older than 50 said they should and 61% of respondents younger then 50 said they should.

In this poll, 67% of Democrats and 55% of Independents support same sex marriage. But only 32% of Republicans do. Even if Republicans were to focus on opposing same-sex marriage, that message will resonate mainly with older, white male voters. It will excite a base that is already motivated to vote this November, but if it alienates independents, is not large enough to carry Republicans to victory. Republicans can’t afford to alienate independent voters if they want to win elections now, and they can’t afford to alienate younger voters if they want to win in the future.

Two years after Proposition 8 passed, Mayor Gavin Newsom (D) is leading the incumbent, Republican Abel Maldonado by 7 points in the California’s Lt. Governors race, (http://abclocal.go.com/kgo/story?section=news/state&id=7547919).

When a voter posted a comment to the Maldonado campaign’s Facebook site, saying that he was so disappointed in Judge Walker’s ruling that he was thinking of not voting at all, Maldonado didn’t mention the issue directly. He simply said it is going to be a close race and everyone should vote.

Maybe establishment Republicans finally realize they are on the wrong side of history.

As Gavin Newsom said in January 2004:

"...the door's wide open, it's going to happen, whether you like it or not!"

Long Odds

17%

The chances of the Republicans taking over the Senate as calculated by Fivethrityeight.com

7%

The chances the Senate Democrats will pick up an extra seat as calculated by Fivethrityeight.com

Both calculations assume Charlie Crist (I-FL) will win and caucus with the Republicans.

There are some interesting races going on right now that seem to be flying below general media coverage. How these stealth races go, could decide who controls a closely divided Senate.

In the Louisiana Senate Race, where Sen. David Vitter (R-LA) the incumbent, will likely run against Rep. Charlie Melancon (D-LA). Several years ago Sen. Vitter was implicated in the “DC Madame” case when his phone number appeared on one of her client lists. Vitter showed other politicians the blueprint for how to handle a sex scandal: show up at a press conference wife in tow, loosely deny everything, go back to work and say nothing.

It seemed to work.

The Republicans stood by him, because then Gov. Kathleen Blanco, a Democrat, would have appointed his successor had he resigned. The Senate ethics committee wouldn’t investigate as Vitter was a member of the House at the time he made the calls. The House issued at toothless reprimand.

Vitter was a lucky man.

Until recently, when the story came out that Vitter kept a male aide on staff who had held his girlfriend hostage at knifepoint, it looked like Vitter would cruise through his reelection. As a result Vitter drew strong challenger for the August 28th primary, in former State Supreme Court Justice Chet Traylor.

Traylor was seen as straight shooter and a strong candidate until stories surfaced that he had been accused of having an affair with State Senator Noble Ellington’s wife, Peggy McDowell, who divorced Sen. Ellington and married Traylor. Traylor denied the accusation saying Ms. McDowell and Ellington were already separated when their relationship started.

Ms. McDowell Traylor died last year, and now Traylor is accused of having an affair with the estranged wife of his stepson, Denise Lively, who is married to, but separated from Noble Ellington’s son, Ryan.

While the Republicans were embroiled in their series of controversies, Rep. Charlie Melancon was still out there campaigning hard. He has released several ads about Vitter covering up for his staffer. These ads have hurt Vitter and have gotten voters to think about an alternative candidate. With Traylor having trouble those voters are beginning to look at Melancon. Melancon released an internal poll showing he was pulling even with Vitter.

True, it was only an internal poll. But Blanche Lincoln (D-Ark) would be delighted to have an internal poll like this to release.

Elsewhere, in California, Republicans were excited about the chance of taking Barbara Boxer’s (D-CA) seat. Boxer’s approval ratings were below 50%. Each time she runs, Republicans and the media believe she is a vulnerable candidate, and each time she runs a strong campaign and wins. In 2003 Boxer had all but announced her retirement. But she changed her mind and in 2004, she won reelection with 58% of the vote. Boxer out polled John Kerry in California by 210,000 votes.

To take Boxer on, Republican’s nominated Carly Fiorina, the former CEO of Hewlett-Packard. Fiorina is best known for the contentious merger between Hewlett-Packard and Compaq Computers. Her previous foray into politics was her stint as an economic advisor to the McCain Presidential campaign, That ended abruptly after she publicly questioned Sarah Palin’s qualifications. Boxer’s message of “I chose public service while she chose to ship jobs overseas” has resonated throughout the state. She has built a solid lead in a race that until recently had been rated a toss up or a Republican pick-up.

North Carolina is another stealth race to watch. Odds are that incumbent Richard Burr (R-NC) will break the “one and done” curse on John Edward’s old seat. This seat has turned every cycle since Jesse Helms protege, John East (R-NC) won it back in the 80’s. But an internal poll released by his Democratic opponent, Elaine Marshall put her ahead. Granted it is an internal poll but, Burr has to be nervous.

Historically races tighten as election day draws near, and in North Carolina, there are alot of undecided voters up for grabs. Generally at this point in a race, most undecided voters do not support the incumbent but haven’t made up their mind on the challenger. Burr will have a harder sell than Marshall with these voters. If there is going to be an upset in 2010 this is where it will be.

In today’s world of short news cycles the election is a long way off, and voters have not begun to focus on the candidates. After they do the odds may change and we will all be surprised.