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Trump, Cruz, and Shinzo Abe’s Constitutionalism

14th Amendment

The 14th Amendment of the US Constitution

By Michael Penn

SNA (Tokyo) — Leading Republican presidential candidate Donald Trump has been making waves with radical policy notions from the day he announced his run for his party’s nomination. He took this to a whole new level on August 16 when he released a five-page report entitled, “Immigration Reform That Will Make America Great Again.” Briefly noted within a subsection called—ironically enough—“Defend The Laws And Constitution Of The United States,” Trump called for “ending birthright citizenship.”

As many critics quickly pointed out, this proposal runs directly counter to the 14th Amendment to the Constitution, passed in 1868, which begins as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Ever since that time the debate over who is a US citizen has been fundamentally resolved—those born in the United States, or within its jurisdiction, or who are naturalized are citizens. It’s an unequivocal standard that became a basic part of the American identity. It has been celebrated by Americans for a century and a half as a key element of the greatness of the country; the basis, for example, of what the Statue of Liberty stands for.

But after other Republican candidates discovered that Trump’s nativist appeal was popular with the conservative party’s political base (and “base” is indeed the correct word here), many of them jumped on the bandwagon and agreed that “birthright citizenship” should be eliminated. Their target, of course, is the nation’s growing latino community, many of whom came to the United States illegally but then had children who were born as US citizens.

The next question posed to the Republican candidates who say that they are against “birthright citizenship” was whether or not they planned to go through the process of revising the 14th Amendment.

Here is how Texas Senator Ted Cruz responded to the question when confronted by Megyn Kelly of Fox News: “It doesn’t make any sense anymore, that people who are here illegally, that their children would have automatic citizenship. That what that does is it serves as an incentive encouraging people to break the law and come here illegally. And we ought to change that policy. Now, as you noted there is a legal dispute about the best means to do it. And there are serious scholars who argue that Congress could do it through statute defining what it means to be subject to the jurisdiction, the language of the 14th Amendment. There are other serious constitutional scholars who argue the only way to change it is through a constitutional amendment. My view is we should pursue either or both, whichever is effective.”

So, in other words, Senator Cruz and others are now arguing that it may be possible to simply “reinterpret” the 14th Amendment so that it might mean something different from what it has been understood to mean since 1868, the year in which Japan disposed of the Tokugawa Shogunate.

All of this may sound eerily familiar to observers of recent Japanese politics. The argument that the 14th Amendment may not actually mean what it says about US citizenship sounds very much like the Shinzo Abe administration’s argument that Article Nine of the Constitution, which reads, in part, that “land, sea and air forces, as well as other war potential, will never be maintained” actually means that the state-of-the-art Ground, Maritime, and Air Self-Defense Forces can launch preemptive attacks against perceived enemies anywhere in the world so long as the government of the day believes that a threat is in some way “existential” (as interpreted and judged by themselves alone).

So it seems that Donald Trump, Ted Cruz, and some other Republican candidates are seeking a degree from the Abe School of Constitutional Law.

Perhaps they might even argue, echoing Abe aide Yosuke Isozaki, that “legal stability” isn’t really that important when faced by the security threat posed by the hordes of illegal immigrants living and working in the United States.

But while it may sound a little passe in a 21st century world in which you can find lawyers willing to argue that up is down and that words mean precisely the opposite of what everyone has understood them to mean for decades, the Shingetsu News Agency would like to remind political leaders in every country that from about the time of the Magna Carta it has been felt that some laws must bind even the governments themselves, and that the body of rules at the top of this system is called a “constitution.”

The King John conservatives need to appreciate that if they expect the people to follow the laws of the land, then they have a follow a few laws themselves. It is definitely not acceptable—in Japan nor the United States—to “reinterpret” the national charter simply because one knows that it may be difficult to revise it through the proper process of popular consent.

Michael Penn is the President of the Shingetsu News Agency

For breaking news, follow on Twitter @ShingetsuNews

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