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Trump Throws Constitution And 14th Amendment Under The Bus

This article is more than 8 years old.

Throughout the history of the nation, many a candidate has had a few outrageous things to say when it comes to telling their supporters what they want to hear.

However, one strains to recall a time when turning one’s back on the Constitution was so in vogue as it is this election season.

It turns out that those who have long enjoyed portraying themselves as the "Guardians of our Constitution", through strict interpretation of the same, and the proponents of law & order as the bulwark of an orderly society—of course I’m speaking of  Republicans—are the very folks who no longer have much use for the Constitution when it fails to meet their desires or live up to their expectations.

Appearing on Bill O’Reilly’s Fox News program Tuesday night, Donald Trump declared that the Fourteenth Amendment—which specifically and clearly guarantees citizenship to all people born or naturalized in the United States and who are subject to U.S. jurisdiction—is unconstitutional.

When O’Reilly took exception to Trump’s version of the Constitution and suggested that Trump’s plan to deny birthright citizenship would require a Constitutional Amendment, Trump argued that he didn’t have time for the process laid out by the Founders to alter the Constitution and that he would not be required to go that route because the Fourteenth Amendment is not going to “hold up in court.”

Really? I didn't know the Constitution could be held to be ....unconstitutional.

For those of you who say that ‘anchor babies’ —children born in the USA of parents who may have only been in the country for a very short period of time and for the express purpose of giving birth to an American citizen—were never intended to be considered citizens when the 14th Amendment was ratified, you would be wrong.

How do we know that?

It would have been impossible for those who ratified the Fourteenth Amendment to have considered the impact of illegal immigrants coming to the USA to give birth because there were no illegal immigrants in 1868 when the 14th Amendment became a part of our Constitution.

In 1868, no limitations whatsoever had been placed on immigration in America and, as a result, no immigrant entered the country illegally.

Regarding Trump's suggestion that he will seek a court decision overruling the citizenship grants contained in the Fourteenth Amendment, he wouldn't be the first to try. Indeed, there have been those who have attempted to argue that the 1884 Supreme Court case of Elk v. Wilkins makes clear that the Fourteenth Amendment requires that natural born citizens must be subject to the jurisdiction of the U.S. in order to be granted citizenship. As a result, they argue, the child of foreign parents who are subject to the jurisdiction of their home country would also be subject to that foreign jurisdiction and, as such, does not meet the test for American citizenship.

The Elk case revolved around an American Indian, born on an Indian reservation, seeking to confirm his US citizenship as a result of having been born within the borders of the USA.

The Court ruled that although American Indians are, indeed, born within our borders, their Indian reservations operated by different laws and jurisdictional requirements and that, as such, the plaintiff was primarily subject to the jurisdiction of the reservation and not the USA. Using this flawed logic, the court denied confirmation of the plaintiff’s American citizenship.

However, in the 1898 case of United States v. Wong Kim Ark, the Supreme Court reviewed the meaning of “subject to the jurisdiction of the United States” and came to a very different conclusion.

In Wong, the Court concluded that the phrase referred to one who is required to obey U.S. law and that, accordingly, the Fourteenth Amendment guaranteed citizenship to almost all children born on US soil as such a person would be obligated to obey U.S. law.

In ruling as they did, the Supreme Court threw out the holding of the Elk case fourteen years earlier, as well they should have, and no SCOTUS that has followed has ever reversed this decision, despite decades of concern over anchor babies.

Mr. Trump is certainly well within his rights to challenge the meaning of the Fourteenth Amendment in a court of law—and I suspect that this is what we can expect him to do.

But how does a responsible candidate formulate and promise a major policy change that will both cost a fortune in national treasure and upset the lives of millions of people born in this country on the hope that he will change the interpretation of a Constitutional Amendment that has long been the law of the land that has survived for so many generations?

To be fair, Trump is not the only candidate for President who wants to play fast and loose with our founding document, thereby sticking a thumb squarely in the eyes of our Founders in the process.

Earlier this year, following the Supreme Court’s decision that legalized same-sex marriage, Governor Mike Huckabee exhorted the 50 states to simply ignore the decision of the highest court in the land because, in Huckabee’s determination, the Supreme Being trumps the Supreme Court.

Apparently, the Supreme Court—and the powers granted to it by the United States Constitution—is only to be taken seriously when the Court’s decisions are in tune with Mike Huckabee’s interpretation of the Word of God, despite the fact that such a competition is precisely what our Founders sought to avoid when creating our nation’s founding document.

And then there is Dr. Ben Carson.

Not to be outdone when it comes to disrespecting the wisdom and architecture of our founding document, Dr. Carson, while appearing on a radio program in January of this year, offered his own prescription for dealing with court decisions that do not meet with his personal approval.

Unhappy with the raft of decisions issued by federal courts, including those that favored the rights of same sex couples to marry, Carson proposed that Congress should simply fire any judge in the federal system whose rulings on the constitutionality of a particular law, or lack thereof, disagrees with the majority view of whomever happens to control Congress.

One marvels at the thought that a brilliant man like Ben Carson could be so clueless when it comes to the Founders genius in creating the checks and balances between the three branches of government that have served us so well for so long.

In making his argument, Carson pointed out that the inferior courts in the Federal Judiciary—those below the Supreme Court—are subject to the oversight of Congress.

Here is what he said during the radio interview

“And Congress actually has oversight of what they call the inferior courts, everything below the Supreme Court. That’s where those overturns have come. When judges do not carry out their duties in an appropriate way, our Congress actually has the right to reprimand or remove them. Most people don’t know that because they don’t know the Constitution.”

The problem is that Carson doesn’t know the Constitution either.

Here is what Article III states:

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (emphasis added) The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior (emphasis added), and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”

Congress has the right to create inferior Federal Courts and Congress has the right to impeach a judge serving on those courts for failing to engage in  “good behavior.”

For those of you who would like to argue that “good behavior” has been violated when the Courts rule in a manner that is inconsistent with the will and beliefs of the majority of Congress, or even inconsistent with the way you view and interpret the Constitution, I would suggest you turn to the words of Alexander Hamilton in The Federalist, No. 78, where he writes:

“In a monarchy [the good behavior standard] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. It is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.”

Obviously, one does not achieve an impartial administration of the laws when the jurists are subject to the whims of the majority in the representative body-Congress.

If you think it should be otherwise, consider how you would have felt just a few years ago when we found ourselves with a conservative Supreme Court and a liberal Congress under the direction of Nancy Pelosi and Harry Reid.

How would you have felt if Pelosi was busy impeaching federal judges who viewed the Constitution differently than she might?

The Constitution is not supposed to be some tool to be messed with when it makes for useful rhetoric in a political campaign. And if you are a Republican, you should be among the very first to agree.

If you want our laws to be subjected to the prevailing viewpoints of our elected representatives at any given moment in history, I suggest you get behind a parliamentary system of government where that is the way things are done.

If you prefer a system where your perception of God’s law takes precedence over the efforts of man to govern his and her own behavior, then I recommend a theocracy is the way you might want to go…just be sure that the religion that controls is one that you believe in or you’ll find yourself in a real pickle.

And if you don’t really believe in anything beyond saying whatever is useful at the time you say it, then I suspect that Donald Trump is your man.

However, if you believe in an American style Democracy, as conceived by the nation’s founders, you cannot pretend to support candidates like Trump, Huckabee or Carson as to do so is simply inconsistent.

Contact Rick at thepolicypage@gmail.com and follow me on Twitter and Facebook. Rick can be seen weeknights at 8PM EST on "The Daily Wrap" on Newsmax TV and heard on Saturdays at 11am on his radio program with Michael Steele on Sirius XM POTUS Channel 124.