It seems like a joke, right? I mean, the 14th Amendment is part<\/em> of the Constitution. It is<\/em> the Constitution. And as such it has<\/em> to be \u201cconstitutional,\u201d doesn\u2019t it?<\/p>\n I find this helpful and insightful, not just when it comes to the perennially disputed constitutionality of the Reconstruction Amendments, but for a host of other muddily debated questions \u2014 including things such as \u201cwhat is an \u2018evangelical\u2019?\u201d or \u201cWas America Founded as a Christian Nation?\u201d<\/p>\n Campos gets into \u201cthe legal theoretical distinction between the constituent political power and the constituted power,\u201d which is easier to understand when it\u2019s applied to a specific example:<\/p>\n Here <\/a>for example is an article from no less an eminent source than the Harvard Law Review,<\/em> arguing that the 15th amendment, which purportedly took away from states and the federal government the right to deny non-white Americans the vote, may not actually be constitutional, because the right of the white man to control the franchise is at the core of the original Constitution itself, and to deny him that right is to essentially overthrow rather than amend that document, in the same sense that an amendment creating a hereditary aristocracy to rule the nation would be unconstitutional. Structurally similar arguments <\/a>have been made in exactly the opposite direction<\/a>, claiming that a constitutional amendment enshrining white supremacy would be unconstitutional, because it would violate the fundamental core principle of the constituent power, which is that all men are created equal, not just white men. (For what should be obvious reasons I\u2019m using the term \u201cmen\u201d rather than \u201cpeople\u201d here intentionally). It\u2019s been argued that a constitutional amendment revoking the free speech clause would be similarly unconstitutional.<\/p><\/blockquote>\n That last example is helpful to me. If Mayor Quimby signed a law banning free speech in Springfield, that law would be obviously unconstitutional, because it would violate the free speech clause of the First Amendment. But if we the people got together to add a 28th Amendment to the Constitution revoking the First Amendment, the new amendment would give \u201cconstitutional\u201d a new meaning, for better or for worse. (It would be worse.)<\/p>\n I rather like<\/em> the First Amendment, so I would very much oppose and resist the Quimby Amendment revoking our rights to free speech, religious liberty, freedom of the press, etc. But I wouldn\u2019t advocate for the First Amendment\u2019s reinstatement solely on the terms of constituent power vs. constituted power. I would advocate for it because I want<\/em> the things the First Amendment secures \u2014 because I value them and seek to honor them and to make them real and keep them real. I would not be arguing solely about what is<\/em> or about what was,<\/em> but about what ought to be.<\/em><\/p>\n And that is basically Campos\u2019s point:<\/p>\n The point is that we can and do have meta-interpretive arguments about what underlying fundamental political principles that make the Constitution fundamental law are. And here it\u2019s critical to distinguish between historical and, narrowly defined, \u201clegal\u201d argument. The answer to the historical question of whether the Constitution is a white supremacist charter, or ultimately rejects white supremacism, is \u201cyes.\u201d That of course can\u2019t be the technical legal answer, because as a functional matter law has to be a lot less complicated than history.<\/p>\n Which brings me to my real point here, which is that arguments about things like birthright citizenship are ultimately really arguments about whether the Constitution should<\/em> be interpreted as a white supremacist charter, or a rejection of that fundamental interpretive understanding of the meaning of America. And it should be unnecessary to point out that any strictly formal legal answer to that question is necessarily a form of question-begging, since it attempts to enlist norms of formal legal description for normative rather than descriptive ends.<\/p>\n And this is a fancy way of saying that anybody who makes a historical argument for the claim that the 14th amendment doesn\u2019t legalize birthright citizenship is, as a practical political matter,<\/em> making an argument for white supremacy. Saying \u201cI\u2019m not arguing for white supremacy, I\u2019m arguing for historical truth,\u201d doesn\u2019t get the putatively non-white supremacist legal historian out of this dilemma, because the question of which <\/em>historical constitutional vision one is advancing, that is, one that is white supremacist or anti-supremacist, is not itself a historical question<\/em>, but a question of political commitment and its attendant moral consequences.<\/p><\/blockquote>\n History is complicated. That includes the slice of history we occupy at any given moment \u2014 the present. But, as Campos says, \u201cas a functional matter law has to be a lot less complicated than history.\u201d<\/p>\n The title of John Fea\u2019s book above \u2014 \u201cWas America Founded as a Christian Nation?\u201d \u2014 is really a shortened version of the question \u201cWas America Founded as a Christian Nation or was America founded on the bedrock principle of religious liberty and the separation of church and state?\u201d And the answer historians and the history itself give to that question is \u201cYes.\u201d It\u2019s complicated<\/em>. But as a functional matter, the question of whether America should<\/em> be \u201ca Christian nation\u201d with a formally established official, privileged sectarian identity has to be a lot less complicated.<\/p>\n And if we want to keep that question uncomplicated, we don\u2019t need to worry about meta-interpretive arguments about constituent and constituted powers. We can keep things uncomplicated by cutting to the core of the argument, which is normative. What do we think it ought<\/em> to be? What do we want?<\/em><\/p>\n That\u2019s really at the core of John Fea\u2019s debunking of the kind of pseudo-history and \u201cChristian America\u201d myth-making promoted by folks like David Barton and Peter Marshall. Historians like Fea provide an important, useful service by correcting \u2014 and complicating \u2014 the historical record to rebut Barton\u2019s lies and his bad-faith \u201chistory.\u201d But the normative question can\u2019t ever be settled by correctly citing and contextualizing Benjamin Franklin\u2019s call for prayer at the Constitutional Convention, or by exploring whether or not George Washington really prayed at Valley Forge.<\/p>\n If I want to refute Bartonism or dominionism or theonomy or Neo-Stuyvesant-ism or any of the other various forms of white Christian nationalism now being promoted I need to start by explaining that I do not want<\/em> sectarian government. And by explaining why<\/em> I do not want it. And then by explaining how and why pseudo-historian religious-right activists like David Barton and Doug Wilson and Stephen Wolfe and Sammy Alito do not and should<\/em> not<\/em> really want it either.<\/p>\n Legitimate historians responding to bogus mythologizers like Barton and Alito also recognize that while history tends to be more complicated than law, law is part of that history. So they cite \u201chistorical\u201d documents like Jefferson\u2019s letter to the Danbury Baptists<\/a> and Washington\u2019s letter to the Hebrew Congregation in Newport<\/a>. But they will also cite the law \u2014 the Constitution itself \u2014 because that legal document is also a historical document. The Establishment clause and the Free Exercise clause (which is not restricted to only Christians) and the Constitution\u2019s ban on religious tests are also part of our history and \u2014 like the stark language of the 14th Amendment \u2014 they\u2019re really not all that ambiguous or ambivalent.<\/p>\n This is a fancy way of saying that anybody who makes a historical argument for the claim that the Constitution does not enshrine secular government is, as a practical political matter,<\/em> making an argument for sectarian supremacy. They\u2019re making a normative argument. They\u2019re telling you what they want.<\/p>\n And, more specifically, they\u2019re telling you what they want to do to you.<\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":" “This is a fancy way of saying that anybody who makes a historical argument for the claim that the 14th amendment doesn\u2019t legalize birthright citizenship is, as a practical political matter, making an argument for white supremacy.”<\/p>\n","protected":false},"author":141,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-73830","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\n![\"\"](\"https:\/\/wp-media.patheos.com\/blogs\/sites\/52\/2026\/04\/FeaFounded.jpg\")
But Campos \u2014 an actual law professor who studies and teaches this stuff for a living \u2014 uses the tools of his trade to unpack the \u201cmeta-interpretive arguments\u201d that explain why it might be possible to conceive of parts of the Constitution being unconstitutional. Helpfully, he then brings this back down to earth in a way that clarifies things for us laypeople and cuts to the core of what\u2019s really going on in such arguments.<\/p>\n