Comment: Fighting Words - All parts of the Constitution are NOT equal to all other parts. Some are
special, here's why. Let's begin with the Bill of Rights. The Bill of Rights
was the price of ratification for the constitution. We would argue that
regardless of the text of the Constitution, the normal amendment process
CANNOT apply to the Bill of Rights, since an amendment to the Bill of Rights
negates the very basis of the adoption of the constitution. Such power is
beyond the reach of ordinary legislatures (even when 3/4ths of the states
concur), and that only a Constitutional Assembly would have the authority to
alter the Bill of Rights. Analogously, we would argue, that the
Reconstruction Amendments are also unalterable, even through a
constitutional amendment, since such an amendment would, in essence, seek to
challenge the result reached in the Civil War. The Reconstruction Amendments
were the price of reaching a lasting peace between the States, and anyone
who tries to disturb the balance thus achieved risks a reprise of the events
of 1861-65. This has particular relevance to amnesty - and we are not
talking about the undocumented here. In our country's history, there have
been three, and only three amnesties by the Federal Government. The first
two, in 1868 by the President, and in 1872, by Congress, were to pardon
Confederates for treason and armed rebellion against the Union, and to
restore their right to vote and hold federal office. The connection of our
argument to the current efforts by some Republicans to question the 14th
amendment is clear. The plain language of the 14th amendment gives us a
bright line test of who is and who is not a US citizen at birth - the Jus
Soli doctrine. Jus Soli is an ancient common law principle, older than our
Republic. If the circumstances of the 14th amendment are to be re-examined,
we would urge a re-examination simultaneously of the Amnesties of 1868 and
1872. If some Republicans suggest that the bright-line, time-honored test of
Jus Soli is to be abandoned, then we would urge a simultaneous abandonment,
nay reversal, of the Amnesties of 1868 and 1872. In particular, we would
argue for the deportation from the United States of all the descendants of
the beneficiaries of those Amnesties. We believe that much of the Republican
Party in Congress would then be deportable, not just from power, but also
from the country of their birth. The Civil War resulted in the deaths of 1
out of 10 fighting-age males in the North, and 1 out of 4 fighting-age males
in the South - it was unquestionably the greatest catastrophe our Nation has
ever suffered. Those Republicans who are contemplating a discussion
questioning the 14th amendment should pause before lightly embarking on a
venture that may, if history is our guide, risk bloodshed. The Reconstruction amendments cemented the cessation of hostilities between the North and the South, much blood, Northern and Southern, supports the hard-earned meaning of the Reconstruction amendments. Reopening that discussion might portend reopening Civil War wounds. We urge patriotic
Republicans, and indeed patriotic Americans of all political stripes, to
impress upon the mis-guided Republicans these two facts: (1) the meaning of
the 14th amendment is in its plain language which could not be plainer, and
(2) the proceedings on which the 14th amendment is based were terminated at
Appomattox Court House on April 9, 1865. Unless some Republicans want to be
extra-ordinarily foolish at extra-ordinary risk to the country, they should
refrain from fighting words.
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Legislative Activity In The 111th Congress
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