Stanley Kutler: Huckabee and the Constitution





[Stanley Kutler is the editor of “The Encyclopedia of the Vietnam War” (Scribner’s, 1995) and the author of “The Wars of Watergate: The Last Crisis of Richard Nixon” (Alfred A. Knopf). He is the E. Gordon Fox Emeritus Professor of American Institutions at the University of Wisconsin, and also professor of law.]

Mike Huckabee is a master at using the clever quip to deflect tough questions.

He toys with criticisms of his “fair tax” policy; at times he ignores the Sixteenth Amendment which makes the income tax indisputably constitutional. He has also made a shambles of the Establishment Clause of the First Amendment, which the Framers of the Constitution intended as the means for ensuring separation of church and state, and social peace in a diversified nation. Now, Huckabee has weighed in another constitutional matter. Again he has demonstrated his fecklessness, if not his ignorance.

On CNN’s “The Situation Room” (Jan. 8), Huckabee finessed the allegation that he favored stripping American citizenship from children born in the United States to illegal immigrants. That ever-present “someone,” he said, had suggested to him that bestowing citizenship on such children “needed to be reviewed.” The status of children of illegal immigrants who had come for the purpose of giving birth, Huckabee added, might indeed might be reconsidered.

As he said, “I simply said that’s something the Supreme Court would have to rule on.” He maintained that rejecting citizenship “was only a conversation that someone had with me.” Again, that “someone.”

But why would – why should – the Supreme Court “reconsider” a constitutional amendment that has been clearly understood for more than 140 years? It could be that Huckabee betrays his “Old South” roots.

Does Huckabee want the Supreme Court to rule whether a constitutional provision is “constitutional” – or not? Perhaps Justices Antonin Scalia and Clarence Thomas, our leading “originalists,” might find that the Fourteenth Amendment violated the so-called “original understanding” of the Constitution.

You bet it did – and thankfully so. The Fourteenth Amendment settled the meaning of American citizenship and repudiated the so-called “three-fifths compromise” of the original document, in which “all other persons” – that is, slaves – counted only as three-fifths of a person. In this, and other ways, the original Constitution had legitimated slavery. The amendment provided a resolution of our constitutional division before 1861. The victorious North inscribed its triumph into the Constitution: “All persons born or naturalized in the United States, . . . are citizens of the United States and of the State wherein they reside.” (Italics added.) The Constitution theoretically has no superfluous language; the command is unequivocal. The United States has, it should be added, the clearest, most generous and most humane definition of citizenship.

As both a preacher and a politician, Huckabee, naturally, loves to talk. But he appears to babble only silliness when he contemplates the possibility that the Fourteenth Amendment does not mean what it clearly states – or that the Supreme Court will say otherwise. He well knows that the Supreme Court – even his kind of Supreme Court – would have no choice. The Constitution is unequivocal.
In the remote chance that such a case wound its way through the courts, the highest court would undoubtedly dismiss the cause without comment. Perfect for Huckabee and others who choose not to consider real, valid solutions to fix the immigration “problem.”

They can claim that they tried—only to be thwarted by the Supreme Court. They would not be the first politicians to beg off responsibility and accountability.
For those who desire Draconian measures to deal with illegal immigrants, expelling the children or purging their proper citizenship is only for their dreams – and our nightmares.


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