Posted on June 22, 2000

by

Daniel Clark

If most people were told that a well-known newspaper columnist had made the case that an illegal alien is not a person under the Constitution, they would probably guess that the man in question was Pat Buchanan. Who else, the average CNN viewer would think, could be so hateful, so divisive, so twisted by nationalistic fervor?

Probably nobody would have guessed that it is Michael Kinsley, Buchanan's former sparring partner on Crossfire, whose June 12^th Slate magazine column says that personhood is reserved almost exclusively for U.S. citizens. Illegal immigrants do not qualify -- nor do tourists, exchange students, or anybody else in America who doesn't call this country home. Not that Kinsley has any animosity toward any of these people, it's just that they are inconvenient to his argument for legal abortion .

The aim of Kinsley's piece is to portray the anti-abortion plank of the Republican Party platform as -- all together now -- extreme. In particular, he recoils from the plank's suggestion that people come into existence at conception rather than birth, and are thus entitled, while yet unborn, to rights under the Fourteenth Amendment. In an effort to demonstrate the presumed folly of this, he relies on the constitutionally illiterate argument presented by Sarah Weddington in Roe v. Wade.

Weddington, the counsel for Roe, argued before the Supreme Court that the unborn have no rights under the Fourteenth Amendment, because the language of that amendment establishes birth as a prerequisite for personhood. Kinsley echoes this contention when he writes, "[T]he 14th Amendment begins, 'All persons born or naturalized in the United States...,' so if anything is 'clear' it is that the 14th Amendment's protections do not apply to the unborn."

Uncomfortable with what the Constitution actually says, liberals tend to rely on the Cliff's notes version of it, rather than reading the entire thing. They reveal this every time they lazily assert that we have no right to keep and bear arms because the Second Amendment says, "a militia." Likewise, Kinsley says that the unborn aren't people because the Fourteenth Amendment says, "All persons born or naturalized in the United States."

If that's true, however, then not only are the unborn inhuman, but so are the unnaturalized. Can Kinsley really be saying that only Americans are people? Well, he does offer this concession: "[A] second reference to 'any person' has sometimes been held to cover resident aliens." How generous.

Of course, the Constitution makes no such effort to redefine the word "person," as anyone would realize who bothers to read Section 1 of the Fourteenth Amendment in its entirety: 

If the word "person" here is roughly synonymous with the word "citizen," as Kinsley argues it is, then why would the people who wrote and ratified this amendment bother using both words? Why not write, "nor shall any state deprive any citizen of life, liberty, or property, without due process of law"? Since they had already defined the term "citizen," that would certainly clear things up for anyone who finds the word "person" confusing.

But then, even if we had no idea what is meant by "person," the fact that the amendment begins by specifying which people are citizens is enough to tell us that people exist who are not citizens. Anyone who has read the Fourteenth Amendment, and believes one must meet its criteria for citizenship in order to qualify as a person, would fail any eighth-grade reading comprehension exam.

The Republicans' anti-abortion plank pledges to "endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children." Kinsley calls that "gibberish" because, "Legislation cannot 'make clear' the meaning of the 14th Amendment because it is a constitutional provision, whose official meaning is up to the Supreme Court, not Congress." In other words, the language which legislators chose to create the amendment is irrelevant, because the words don't mean what they say, they only mean what the judiciary says they say.

The "official meaning" of the Constitution is not "up to" the Supreme Court. While the Court must make judgments to clear up legislative ambiguities, it is not, constitutionally, at liberty to invent its own definitions for words, and decide that a law means something which it clearly does not say. The Supreme Court could not, for instance, rule that the First Amendment entitles every American to a free salami, because there is no language in the amendment to support that interpretation.

The meaning of a law is up to Congress, because it is Congress which writes the laws. If it does so with clarity, the Supreme Court has no business making judgments regarding the meaning of the law, but should only apply it as written. If Congress were to pass a law stating specifically that the unborn shall not be deprived of life without due process of law, the Court must not interpret it in any way that would allow abortion to remain legal, unless it could illustrate that the new law conflicted in some way with the Constitution.

There can be no "official meaning" of the word "person" other than its actual definition, at least not if our constitutional rights are to mean anything. The last time a separate "official" meaning of "person" was accepted, it became the very motivation for drafting the Fourteenth Amendment, which reaffirmed the long-lost Fifth Amendment rights of those who had been deemed not officially people. Today, liberals' commitment to legal abortion is leading them to redefine the term again, coincidentally barring other whole classifications of people from official personhood.

Mind you, if Kinsley, or any other liberal, were asked point blank whether illegal aliens are people, his response would probably be something like, "How dare you even ask such a question, you xenophobic chowderhead?" Indeed, those on the Left treat illegal immigrants as informal citizens, entitled to welfare benefits and taxpayer-funded education, as if the difference between illegal and legal immigrants were a mere technicality.

Why, then, has Kinsley banished them from the human race? It's a tactical calculation he has made, due to the fact that the unborn, even those who exist within America's borders, are not U.S. citizens. When he argues that only a citizen can be a person, therefore a fetus cannot be a person, he is making a logically consistent argument, albeit one based on a phony premise. It's not often that an abortion advocate has a chance to assume the posture of reason, so why give up that opportunity in deference to the rights of people who aren't immediately threatened anyway?

Imagine the Supreme Court hearing a case, which, based on Weddington's Fourteenth Amendment argument, threatened the lives, liberty or property of a certain group of foreigners. Not only would it not be dignified with serious consideration, but it would be rebuked most harshly by the most liberal justices. That, though, would be another case at another time.

To liberals, reality is both optional and disposable. While debating abortion today, they choose a reality in which non-citizens have no right to life. When debating welfare tomorrow, they'll discard that reality and pick one in which the very idea that citizenship matters is self-evidently racist.

In this way, people are able to decide whether or not others are entitled to fundamental human rights, based on their own feelings toward situational variables -- and all they have to do to obtain this power is to begin thinking as liberals. And Kinsley thinks those conservative, anti-abortion Republicans are too judgmental.

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