On January 17, outgoing US president Joe Biden belatedly announced the ratification — in 2018 — of the 28th Amendment (the “Equal Rights Amendment”) to the US Constitution.

On January 20, incoming US president Donald Trump issued an executive order claiming that the 14th Amendment (and 8 U.S.C. 1401) no longer mean what they’ve always meant and have always been understood to mean, where that constitutional amendment and that federal law decree that all persons “born in the United States, and subject to the jurisdiction thereof” are US citizens.

While it’s refreshing to see one president acknowledge the rule of law vis a vis constitutional amendments, even ineffectually and at a late date, it seems far more likely that Trump’s repudiation of that law, and his claim to have unilaterally repealed the 14th Amendment, will prove the more effectual policy move, at least in the near term.

Not because Trump’s right and Biden’s wrong, mind you (the opposite happens to be the case in this instance), but because the US Constitution gets respected or ignored depending on whether those in power prefer to respect it or ignore it.

They respect it when it lets them do whatever they want to do, or at least doesn’t get in the way of whatever they want to do, especially when putting on a big show of respecting it makes for good PR.

They ignore it whenever it says they can’t have something they want, then hope the courts are willing to ignore it too.

Which brings me to my favorite Lysander Spooner quote (regular readers of my column will recognize it):

“But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Depending on the Constitution to protect us from the US government in general, or from the president in particular, is a fool’s game.

It’s like waving the title to your Audi in a car-jacker’s face, believing he’ll put his pistol away and leave you alone once he sees it.

If Trump moves ahead with his anti-immigration nonsense (which, “birthright citizenship” aside, is constitutionally forbidden in its entirety by Article I, Section 9 and Amendment 10), appeals to the Constitution won’t help.

If we want to defend that particular element of freedom, it’s going to require our active physical resistance.

Thomas L. Knapp (X: @thomaslknapp | Bluesky: @knappster.bsky.social | Mastodon: @knappster) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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