American Exceptionalism Moves To The Boardroom?
It is a rare day when I give conservatives some accolades, but here it goes. First it was Ted Olson finally talking back to the current cultural standard-bearers on the right about the need for constitutional fidelity in defending his hard-fought victory in the Proposition 8 case. And now Mark McKinnon and Cesar Conda, policy advisors to Dick Cheney and George W. Bush, have called the recent GOP proposals to repeal portions of the 14th Amendment “offensive” and pure demagoguery. I KNOW!
Both McKinnon and Conda make the obvious argument that repealing any portion of the 14th Amendment, but especially the portion that deals with birthright citizenship is not only morally wrong, it is historically tone deaf. To call for an end to birthright citizenship in this country ignores the core principle of American exceptionalism, a concept that as a progressive I’ve at times been wary of because it smacks of imperial justification. That said, on this issue (and maybe conveniently because it supports an idealism in equality that I refuse to let die) I am completely comfortable wrapping myself in the flag, or more appropriately, the Constitution.
For those of you who might need a refresher, this is the idea, as articulated by Alexis de Tocqueville and carried on through the ages that this country is different- both because at the time of de Tocqueville this country’s representative democracy was in its infancy and functioning, and, more broadly, because it is inherently a nation of immigrants. Our history is not (or at least it should not be) a history of the landed elites, passing title to heirs that alone grants the privileges and immunities of citizenship. So what if other countries do not have birthright citizenship, and really, what the hell does that matter on THIS conversation? It doesn’t.
But we’ve obviously come a long way from de Tocqueville, and perhaps even the romance of American exceptionalism. And given the forces behind the GOP push to “rethink” the 14th Amendment, perhaps we can offer an alternative argument for keeping it that would appeal to their decidedly more elitist impulses.
Without the 14th Amendment we have no corporate personhood and no basis for corporate speech rights which means, of course, the pride and joy of the corporatist GOP and Roberts Court, the Citizens United decision, would have to go. SAY WHAT?
I concede this is a point of constitutional law that is a little more obtuse and a little more controversial. It is well established law that corporations are “persons” for purposes of 14th Amendment analysis (see, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 (1985)). Now, it was also settled that corporations, while persons, are not considered citizens, for purposes of 14th Amendment analysis meaning that they do not enjoy the privileges and immunities afforded citizens. (See Western and Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 656 (1981)). But that’s about as clear as it gets. Stick with me for a second.
It is through the 14th Amendment that all other rights, such as First Amendment speech rights, flow. And it is because of their status as “persons’ that corporations enjoy First Amendment protections and have the ability, thanks to the Roberts Court, to spend unlimited dollars of political speech. Citizens United did not suddenly confer citizenship onto corporate persons, but it certainly elevated the corporate form to a new level of constitutional equality that many find offensive and cynical and also calls into question the very idea that they do not share some new form of citizen status. Even Justice Stevens in his dissent snarked that under the majority’s opinion we now faced the daunting task of figuring out just how to allow corporations to actually vote, since, under First Amendment analysis, voting is an expression of speech rights as well.
My point is, it would seem then that for those like Sen. McConnell, the 14th Amendment does serve a useful purpose after all, and that is protecting the constitutional shield currently surrounding the corporate form.
So maybe those of us on the left (and now, thankfully, even portions of the right) have gone about this all wrong. Maybe what we need to do is exercise a bit of constitutional leverage on this absurd debate surrounding the 14th Amendment. No more birthright citizenship in exchange for no more corporate personhood. Deal? I mean, we need to work out the kinks in any proposed amendment, so how about we start there. At the very least I think it would go pretty far in shining some light on the xenophobia that is really driving this debate from within the GOP right now.