The Constitution “does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional” according to a resolution sponsored by North Carolina House Majority Leader Edgar Starnes (R) and ten of his fellow Republicans — a statement that puts them at odds with over 200 years of constitutional law. In light of this novel reading of the Constitution, Starnes and his allies also claim that North Carolina is free to ignore the Constitution’s ban on government endorsement of religion:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

This resolution is nothing less than an effort to repudiate the result of the Civil War. As the resolution correctly notes, the First Amendment merely provides that “Congress shall make no law respecting an establishment of religion,” and, indeed, the Bill of Rights was originally understood to only place limits on the federal government. For the earliest years of the Republic, the Bill of Rights were not really “rights” at all, but were instead guidelines on which powers belonged to central authorities and which ones remained exclusively in the hands of state lawmakers.

In 1868, however the Fourteenth Amendment was ratified for the express purpose of changing this balance of power. While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” The Fourteenth Amendment completely transformed the nature of the American Republic, from one where liberties were generally protected — if at all — by tensions between competing governments to one which recognized that there are certain liberties that cannot be abridged by any government.

There is some academic debate about whether the architects of the Fourteenth Amendment intended the freedoms protected by the Bill of Rights to be applied to the states because these liberties are part of the “privileges or immunities” of U.S. citizens, or because they are liberties that cannot be denied under the Constitution’s “due process” guarantees. Regardless of the correct answer to this academic question, however, one of the most important judicial projects of the Twentieth Century was a series of Supreme Court decisions applying most of the Bill of Rights’ limits to state governments. This project completed the work the framers of the Fourteenth Amendment began nearly 150 year ago — reconstructing America as a nation that recognizes certain civil rights which no lawmaker is allowed to trample. The right to be free from government endorsements of religious is one of these civil rights.

So when Starnes and his colleagues lash out against this one freedom, they are not simply lashing out against some court decisions that they disagree with. They are rejecting the most transformative moment in American constitutional history and denying that their side lost the Civil War.

President Obama’s endorsement of marriage equality was an historic occasion, but he also qualified it somewhat by suggesting that states should continue to decide whether to discriminate against their citizens. In an interview released this morning with ABC News’ George Stephanopoulos, the president indicated that his views on marriage have evolved even further. He now says that he cannot imagine how a state’s decision to discriminate against same-sex couples could be constitutional:

“Well, I’ve gotta tell you that — in terms of practical politics, what I’ve seen is a healthy debate taking place state by state, and not every state has the exact same attitudes and cultural mores. And I — you know, my thinking was that this is traditionally a state issue and — that it will work itself out,” he said. “On the other hand — what I also believe is that the core principle that people don’t get discriminated against — that’s one of our core values. And it’s in our Constitution.”

Stephanopoulos then asked whether Obama could imagine a circumstance wherein a state’s gay marriage ban could pass constitutional muster.

“Well, I can’t, personally. I cannot,” Obama responded. “That’s part of the reason I said, ultimately, I think that, same-sex couples should be able to marry. That’s my personal position. And, frankly, that’s the position that’s reflected — in the briefs that we filed — in the Supreme Court.”

This latest statement is exactly right. Marriage discrimination is unconstitutional because the Constitution’s Fourteenth Amendment — which was ratified after the Civil War for the specific purpose of limiting the states’ ability to discriminate — provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Constitution could not be more explicit that its protections against discrimination apply to state lawmakers.

Despite this clarity, the Obama Administration’s brief largely suggests a two phase process in order to achieve marriage equality for all. The brief argues that all states which currently provide civil unions or similar arrangement for same-sex couples should instead allow those couples to marry, while punting on the question of whether other states must come into compliance with the Constitution. At the same time, however, the brief also recommends a legal standard that would inevitably lead to marriage discrimination laws being struck down nationwide.

Gay conservative law Professor Dale Carpenter conducted a survey of nearly 500 of his fellow constitutional law professors asking their views on marriage equality and the Constitution. He discovered that, at least among this set of constitutional experts, federal marriage discrimination is overwhelmingly viewed as unconstitutional and a solid majority believe state discrimination is unconstitutional as well:

QUESTION 3: “Section 3 of the Defense of Marriage Act (DOMA) forbids the federal government to recognize same-sex marriages legalized in the states. As a matter of federal constitutional law, do you believe the federal government may refuse to recognize same-sex marriages legalized in the states?”

Yes (DOMA Section 3 is constitutional) — 16%
No (DOMA Section 3 is unconstitutional) — 69%
Not sure — 11%
No Answer/Other — 3%

QUESTION 4: “As a matter of federal constitutional law, do you believe that states *must* allow same-sex couples to marry?”

Yes — 54%
No — 28%
Not Sure — 13%
No Answer/Other — 5%

The discrepancy between those professors who recognize the unconstitutionality of DOMA and those who understand that states may not deny equal marriage rights to gay couples as well likely reflects presence of conservatives who believe the Constitution has little to say about anti-gay discrimination, but who also think that it imposes novel new limits on federal power. According to Carpenter’s data, 54 percent of constitutional law professors appear to recognize that the Constitutional promise of “equal protection of the laws” applies to gay people. Additionally, at least 15 percent appear to believe that DOMA violates some fabricated new doctrine protecting states’ rights.

This is, of course, a hopeful sign that DOMA will soon be declared unconstitutional by the Supreme Court. Justice Kennedy, who is the likely swing voter in the DOMA case, has a fairly solid record on gay rights and he recently displayed a particular fondness for outlandish states’ rights arguments. It is reasonably likely that one or both of the leading arguments against DOMA will convince Justice Kennedy.

One caveat is in order, however. Prior to oral arguments in the Affordable Care Act case, 85 percent predicted the justices would uphold the law on the merits. That prediction came true, but the justices came disturbingly close to accepting the completely meritless case against health reform.

Kody Brown and his four wives, the stars of TLC’s reality TV show Sister Wives have sued the state of Utah and the county they fled from in an attempt to overturn the state’s ban on polygamy. For tens of thousands of Mormon fundamentalists practicing polygamy the case could eliminate the specter of criminal penalties. In Utah, bigamy is a third-degree felony punishable by up to five years in prison.

Utah has publicly announced that the state will not prosecute consenting adult polygamy unless there are other crimes involved, but argues that the law against polygamy is constitutional.

“It is not protected under religious freedom because states have the right to regulate marriage,” said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff (R).

Utah County Attorney Jeff Buhman (R) in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, claiming the Browns no longer have standing since they aren’t subject to prosecution.

But the judge in the Browns case appeared reluctant to drop the case, worrying that the state was trying to avoid the constitutional issue.

U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was “simply a ruse to avoid having the issue reviewed.”

“What’s the policy reason behind this … that would give assurances that similar prosecutions will not be pursued in the future?” Waddoups asked. “What about the next couple?”

The lawsuit by the Browns does not challenge Utah’s authority to refuse to grant or recognize multiple marriage licenses, only the part of the law that makes it illegal to even purport to be married to multiple partners. The Browns argue that private intimate relationships between consenting adults are constitutionally protected, and they may have a point.

In Lawrence v. Texas the Supreme Court struck down Texas’s sodomy ban, reasoning that intimate sexual relationships are protected by the liberty interest guaranteed by the 14th Amendment. Justice Anthony Kennedy, writing for the majority, ruled that “the State cannot demean [Lawrence and Garner's] existence or control their destiny by making their private sexual conduct a crime.” Kennedy continued “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Kennedy also rejected the idea that a history of moral condemnation of homosexual conduct could overcome the constitutional protection, ruling that the majority can not use the state to impose its moral views on sexuality on society as a whole through the operation of criminal law.

As long as polygamous couples aren’t asking for legal recognition of multiple marriage licenses, the same reasoning applied in Lawrence appears to extend to consensual adult polygamous relationships. If same sex couples’ freedom to define personal relationships in the privacy of their homes is constitutionally protected, there is no reason that polygamous couples who also wish to privately define their relationships to each other should not be. And if society’s views on the immorality of homosexual conduct cannot support a ban on sodomy, there is no reason for society’s views on the immorality of polygamy to support a ban on purporting to be married to more than one person.

–Alex Brown

Last year, Congressional Republicans exploited an unfortunate quirk in American law to hold the American economy hostage unless President Obama capitulated to rapidly escalating demands for austerity. When the federal budget runs a deficit, Congress must periodically cast a vote to raise the nation’s debt ceiling or else the entire nation will be thrust into catastrophe. Had Republicans carried through on their threat to refuse to raise the debt ceiling, it likely would have dealt an even sharper blow to the U.S. economy than the worst part of the Great Recession that began in 2008.

At a meeting with reporters late last week, House Minority Leader Nancy Pelosi (D-CA) embraced a plan to make sure this kind of hostage taking can never happen again — declaring the debt ceiling unconstitutional:

At a lunch roundtable with columnists earlier today, House Minority Leader Nancy Pelosi urged President Barack Obama to avoid a new debt-ceiling showdown by stating that a statutory borrowing limit is inconsistent with Section 4 of the 14th Amendment, which states that “the validity of the public debt of the United States … shall not be questioned.”

She at first referred to this possibility obliquely while making a larger point about the lack of cooperative spirit between the Republican Party and the Obama administration but clarified her stance in response to further questions saying, “I would like to see the Constitution used to protect the country’s full faith and credit.” She didn’t offer a legal argument in favor of the position but argued on policy grounds that “you cannot put the country through the uncertainty” again, noting that America’s sovereign debt was downgraded by ratings agencies in the wake of the standoff even though it was successfully resolved.

Pelosi’s constitutional solution to the debt ceiling time bomb is not a new suggestion. Several senators proposed President Obama invoke the Fourteenth Amendment and disarm this time bomb during the GOP-led crisis last year — although Obama himself often showed rhetorical reluctance to turn to the Fourteenth Amendment.

If the American people choose to elect Obama to a second term, however, their decision may become utterly meaningless unless the White House executes some plan to take the debt ceiling off the table for good. Senate Minority Leader Mitch McConnell (R-KY) has already warned that he will use the debt ceiling to take America hostage again in 2013, once again forcing a choice between a sudden economic collapse or a slow bleed due to austerity.

In other words, McConnell’s plan is to ensure that, no matter who wins the 2012 election, Republicans will get to set our nation’s policy. If America is to remain a democracy, eliminating the debt ceiling time bomb needs to be a top priority.

Our guest blogger is Angela Maria Kelley, vice president for immigration policy and advocacy at the Center for American Progress

Brian Williams’s new show Rock Center debuted Monday night with a segment called “Born in the U.S.A.” focusing on the obscure yet provocative “birth tourism” practice whereby foreign women come to the United States for the express purpose of giving birth so that their children have American citizenship and then return after giving birth to their home country.

I appeared in the segment and was dismayed by reporter Kate Snow’s neglectful treatment of the subject by failing to provide facts and a fair framing of the issue and my views. To the credit of Kate Snow and her producer Anna Schecter, both contacted me yesterday and NBC has updated its website with a clearer representation of my views. Still, if you tuned in to the show on Monday, and thought you got the story on birth tourism, you did not. Here is what they failed to tell you:

Let’s start with the facts: According to the most recent statistics, only 7,462 children out of the more than 4 million born in the United States in 2008 were born to people who do not reside here. Of this handful of births, (1/10th of 1 percent of all births,) many are here on legal visas like student or business visas. In the course of their studies or work in the U.S., they may get pregnant and have a baby. Some are tourists who do not intend to deliver in the U.S., but go into early labor. And yes, some, a small faction of the 7,000 annual births a year actually come to the U.S. simply to obtain citizenship for their children. I lost count the number of times I cited those statistics in the interview, but unfortunately the key facts ended up on the cutting room floor.

Next, the report makes it seem as though one of the biggest selling points of birth tourism is that “it’s an easier way for the whole family to get green cards.” Hearing the story, one would think the green cards might come in the mail to the baby’s entire family days after the baby is born. The truth undercutting the scare is that children cannot sponsor their parents or siblings until they turn 21. It will still be over two decades before relatives can enter the United States because of that child’s status, and even then, the child has to prove, among other things, that he or she can financially support the family members among other requirements. A quick Google search of family immigration requirements would have informed the show’s producers of these basic facts or they could have asked me.

What I did discuss in length was a range of ways the practice of birthright tourism could be dealt with, but the producers did not air any of my comments, making it seem as though the Center for American Progress is in favor of birth tourism — a position that neither my organization nor I hold. Again, the show failed to air my express understanding of why the issue matters to Americans and my range of approaches for addressing the concern. One option is to regulate the birthing centers. Though highly problematic at many levels, the United States could also scrutinize women of childbearing age applying for a visa and attempt to control or predict their propensity to give birth while in the U.S. –- not easy or wise to do in my view.

Finally, as Rep. Phil Gingrey (R-GA) who was also interviewed suggests, we could change the U.S. Constitution and scrutinize the lineage of all women giving birth in the US before granting citizenship. This proposal seems like using a grenade to go after a gnat, but again, a conversation about what to do to solve the problem was given short shrift.

Rock Center’s debut was far from rock solid — we can only hope it gets on course and offers more facts and less flash.

Yesterday, the Southern Poverty Law Center filed a class-action lawsuit on behalf of a group of United States citizens who were denied in-state tuition at Florida colleges because of who their parents are:

Wendy Ruiz is an American citizen, a native of Miami, where she was born in 1992. She has a Florida birth certificate. She has a Florida high school diploma. She has a Florida voter registration card, a Florida driver’s license and a Florida bank account. She is an honor student in her second year at Miami Dade College–as an out-of-state student.

Ruiz is paying $377 per credit hour, instead of the $105.50 afforded in-state residents. That works out to an annual tuition and fees bill of $9,000 instead of the $2,500 in-state residents pay. Ruiz can’t afford the normal, 12-credit-per-semester load, though that’s what she’d rather take. So she’ll end up taking three years to finish her two-year degree.

Why? Because her parents cannot show proof of her parents’ legal immigration status. Florida’s college and university system’s rule is unbending. A student’s residency status is irrelevant no matter how American, no matter how Floridian. Ruiz could have been Miss Florida for all the university system cares. It’s her parents’ residency status that counts, which also means that for countless students whose parents are being forced to move out of the state for economic reasons, they take their child’s in-state rate away with them.

It’s profoundly cruel when states treat young people who spent all but the very beginning of their life in the United States as if they were strangers. But Florida’s law is even more insidious. Wendy Ruiz is no less an American than Mitt Romney, John Boehner or Barack Obama. States have no right whatsoever to single her out simply because they do not approve of who her parents are.

Indeed, Ruiz’ equal claim to her full status as a United States citizen is written unambiguously into the Constitution itself. Under the 14th Amendment,

[a]ll 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Although this Privileges and Immunities Clause largely laid dormant for much of American history, the Supreme Court held more than a decade ago that it forbids states from singling out a group of American citizens for inferior treatment. As the Court held in Saenz v. Roe, once an American takes residence in a state, they are guaranteed “the same rights as other citizens of that State.”

So there is no question that Florida law is invalid and must be declared unconstitutional. Wendy Ruiz is an American and Florida has a constitutional obligation to treat her like one.

Justice Antonin Scalia has a long history of skepticism toward the Constitution’s shield against laws that discriminate against women. In a 1996 Supreme Court decision limiting gender discrimination in Virginia’s higher education system, Scalia cast the sole dissenting vote in favor of allowing the state to continue to deny educational opportunities to women. And he has repeatedly claimed that the 14th Amendment’s guarantee of “equal protection of the laws” does not prevent gender discrimination. Yet, in a response to a question from Sen. Dianne Feinstein (D-CA) at a Senate Judiciary Committee hearing earlier this week, Scalia appeared to back off this longstanding view:

FEINSTEIN: This is your quote, Mr. Justice, in California: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” So why doesn’t the Fourteenth Amendment then cover women?

SCALIA: The Fourteenth Amendment, senator, does not apply to private discrimination. I was speaking of Title VII and laws that prohibit private discrimination. The Fourteenth Amendment says nothing about private discrimination, only discrimination by government.

Scalia is correct that the 14th Amendment only applies to government discrimination, but he is wrong about what he has said in the past. The quote Sen. Feinstein read came from an interview where Scalia was asked if “we’ve gone off in error by applying the 14th Amendment” to sex discrimination and discrimination on the basis of sexual orientation. Scalia began his response by saying “yes, yes” he does think applying the 14th Amendment to gender discrimination was an error.

It’s possible that Scalia simply misremembered his past statement on gender discrimination, although this is unlikely because the statement was widely reported and just as widely criticized. Nevertheless, if Scalia is now backing off this strange position and is willing to embrace the mainstream view that laws singling out women for inferior treatment do indeed violate the Constitution, then that is a positive development and Scalia deserves credit for rejecting his unfortunate past statements.

The GOP’s top presidential candidate Gov. Rick Perry (TX) recently discovered that his occasional compassion for undocumented children is a serious liability with the Republican base. But the other candidate from Texas, Rep. Ron Paul (R), appears to have learned that lesson long ago. Going far beyond opposition to any kind of DREAM Act legislation for children, Paul actually questions the validity of the Constitution because he doesn’t believe children born in the U.S. should automatically be U.S. citizens.

Mediaite reports that in an interview with Univision’s Al Punto on Sunday, Paul told host Jorge Ramos that his idea of immigration reform is a “program of assimilation.” But when Ramos asked Paul whether he liked the idea that those born on American soil are automatically citizens — an idea enshrined in the 14th Amendment — this “strict constitutionalist” declared, “No, I don’t think that should be automatic.” When Ramos pointed out that conflicts with the constitution, Paul argued “it depends on how you interpret the constitution”:

RAMOS: As you know, children of undocumented immigrants who are born in the United States are citizens Is that ok?

PAUL: I just think the mere fact of stepping across the border and having a child — and I’m an O.B. doctor and I’ve had to take a lot emergency deliveries and people came for the sole purpose of that. No, I don’t think that should be automatic. I think we should have more control of our borders.

RAMOS: So you want to change the constitution, is that what you’re saying?

PAUL: Well it depends on how you interpret the constitution. “Under the jurisdiction” is the big issue there, and that’s why so often debated. What does “under the jurisdiction” mean? If you’re illegal, you might not be considered under the jurisdiction of the U.S. government.

Watch it:

Paul has long sought to demolish the 14th Amendment. The chief sponsor of a bill to deny birthright citizenship to any child born to an undocumented parent on American soil in 2007, Paul reiterated the need to “attack the benefits” of undocumented immigrants by ensuring “no free education, no free subsidies, no citizenship, no birthright citizenship.”

The irony here is that, in advocating for the most radically nativist immigration policy, Paul is attacking the one document he swears to live by: the Constitution. Under the 14th Amendment, “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.” As TP Justice editor Ian Millhiser notes, the language is “unambiguous” and is reinforced by the Supreme Court. In U.S. v. Wong Kim Ark and in Plyer v. Doe, the High Court “firmly rejected the notion that persons born in the US are not citizens, regardless of the immigration status of their parents.”

What’s more, the 14th Amendment’s “under the jurisdiction” language simply means that a person is subject to the laws of the U.S. If a child born on U.S. soil is not under the jurisdiction of U.S. laws, then the government has no authority to deport that child. And if illegal immigrants are not under the jurisdiction of U.S. laws as Paul suggests, then they can break U.S. law without consequence — which is certainly not the case.

When Ramos informed Paul that his unconstitutional position would lose him Hispanic support, Paul said “the idea that I have to kow-tow” to “a special group” by giving them “special privileges” is “unnecessary.” “I don’t want to punish anybody because they belong to a group, but nobody should get a special privilege either,” he said. Apparently to Paul, basic rights guaranteed by the U.S. constitution now count as “a special privilege.”