Saturday, March 28, 2026

The Constitution Will Not Save Us

 Jamelle Bouie reviews the 14th amendment:

The 14th Amendment that Miller seems to despise flows directly from the vision of Gettysburg and Appomattox, Bouie wrote, and he said straightforward reading of its first section makes clear that American citizenship in almost every case would be established by birth and grant all “privileges and immunities” to anyone born on U.S. soil.

"The Supreme Court would eventually trim and limit this vision, eventually going, in Plessy v. Ferguson in 1896, as far as to permit the kind of subordination that the 14th Amendment was explicitly written to forbid," Bouie wrote. "Indeed, this was part of the transformation of this amendment into a merely legal document — of removing its political content and treating it as a bare set of narrow requirements. The court would do the same to both the 13th and 15th Amendments, robbing them of their power to transform the American republic."

All this chiseling away from the amendment and its intended purpose was done to restore to white southerners the power they felt they'd lost after the Civil War and support the imperial expansion of the era, and Bouie wrote that Miller and his MAGA acolytes were engaged in the same project.

"It is no wonder, then, that they want to gut the 14th Amendment, which was revitalized by the struggles of Black Americans and other groups throughout the 20th century," Bouie wrote. "Theirs is a project of subordination at home and abroad; of the re-inscription of caste and the recreation of tiered citizenship based on race and nationality. And now, as then, the 14th Amendment stands in the way."

"It is not enough, as important as it is, to attack the legal basis of Miller’s efforts or debunk MAGA’s historical arguments," he added. "One must also bring a positive political vision to bear against their fantasy of reimposing rigid lines of caste, class and hierarchy.
I have to say that portion of his argument overlooks the core of the Plyler decision which Miller wants the Texas Legislature to challenge.
Justice William Brennan wrote in the 1982 decision that denying those children a basic education prevented them from living within the structure of American civic institutions and kept them from contributing to the nation's progress, and Bouie then explored the political context of the Reconstruction-era 14th Amendment granting birthright citizenship, which flowed directly from the previous amendment outlawing slavery.

"Today, as a matter of legal interpretation, we read the 13th quite narrowly; it simply ends slavery," Bouie wrote. "But the authors and ratifiers of the 13th Amendment saw it more expansively. To them, it was the foundation for the society they hoped to build."
That's where he begins, but he ironically narrows the 14th in accordance with the judicial rulings he deprecates.

I should explain: Plyler held that Texas could not deny children of undocumented immigrants access to public schools, in no small part because property taxes support Texas public schools. The basis for this holding was the equal protection clause of the 14th amendment. The odds the Lege will serve Miller’s interests are zip and none.* But that doesn’t affect Bouie’s analysis, What does is his emphasis on birthright citizenship as providing rights to persons born here. That is effectively Miller’s argument; but the 14th provides for equal protection of the laws to persons born, not just to citizens. That is the basis for “a positive political vision to bear against their fantasy of reimposing rigid lines of caste, class and hierarchy.” Or completely false and unAmerican lines of “citizens” and non-citizen. (I know the “Founders” were enamored of the Romans, but even they didn’t set up a system of citizens with rights, and non-citizens with lesser rights. Slaves were neither, before you ask. Which is shameful in entirely another way, and what the Civil War Amendments tried to rectify.

Which is actually the lesson here, as it took the Warren Court and then LBJ and then the Berger Court to begin to do what those amendments meant to do. But racism and economic power were in the societal genetics before the Constitutional convention in Philadelphia, and no amount of law can prevent that from being the direction of the country.

As we learned in the Sixties (well, the Boomers did), making the country we want to live in is always up to we, the people. We can’t elect anybody to do it for us. We can’t even let the courts do it in spite of us (precisely the outcome Miller wants to engineer). (Court reforms have redirected the Court before; and unless Alito and Thomas retire before November, the odds of Trump getting his first picks are close to zero.)

It always has been, and always will be, up to us. Even LBJ didn’t change civil rights law without the people behind him.
 






*Lite Guv Dan Patrick runs the Texas Senate for six months every two years. He’s announced the Senate agenda (six months goes quickly). It doesn’t include Miller’s wish, which means it probably won’t come up. Patrick had three priorities ; it’ll probably take all six months to get them passed. He’s not interested in making things harder.
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