Why do politicians and pundits who back repealing birthright citizenship want to insist it would not take a constitutional amendment to alter the 14th Amendment? (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”) I can think of a few reasons.
For starters, it would reveal their idea to be unattainable. Amending the Constitution is very difficult; amending it for something this controversial would be impossible. In addition, conservatives are supposed to be careful, reasoned and take measured steps that respect law and tradition. Ripping up the Constitution when there are far more workable ways to defend against illegal immigration is radical, not conservative. Moreover, it reminds us what a morass this would be figuring out whose parents were illegal, how we handle non-citizens born in the states (they can’t vote? can they serve in the military?), and a myriad of other complications that would require an intrusive and large bureaucracy. (What’s next — demanding paternity tests to prevent citizenship “fraud”?)
Unfortunately, the law — the text of the Constitution, the legislative history, the legislative history of the civil rights statue that preceded it and over a hundred years of precedent — strongly weighs in favor of the argument that only an amendment to the 14th Amendment could change the law. Having plowed through multiple scholarly works, including those by originalists, I can say the case, if not airtight, is overwhelming, thanks to examination of the debates, drafting and votes on the amendment. And even if you’re not entirely convinced by all that, can anyone imagine this Supreme Court, which determined a constitutional right for gays to marry, would strip citizenship from millions of people? And a warning to the GOP debate participants is in order: radio host and moderator of the 2nd GOP debate Hugh Hewitt knows this stuff cold.
Carly Fiorina, a non-lawyer, understands the 14th Amendment guarantees birthright citizenship. To his credit even anti-immigration hawk also Louisiana Gov. Bobby Jindal understands this. He had this exchange with Hewitt:
HH: Well, I agree with that. That’s, your analysis is correct, but that does still leave hanging the question. The Supreme Court decided this in 1898 that people born in the United States are citizens, and that’s because of the 14th Amendment which passed in the Civil War. And I don’t think that will ever be changed, actually. I don’t think it’s possible to change that, but given the Constitutional amendment process. So isn’t it easiest just to say no, I don’t support, whether or not people want to bring it forward, I just won’t support it? Isn’t that easier to say and then move onto the analysis?
BJ: Well, I think there are other people that don’t support it, because ideologically, they oppose it. I guess my rationale is what I really want to do is solve the problem that people are worried about. And you know, in today’s political soundbytes, what I worry is, is that it’s easy to try to get, you know, in some debates, they try to get people to raise their hands. This is a presidential debate. It should be a discussion. And people should have the opportunity to offer analysis and good answers. And people can agree or disagree with them. I think we’ve got to get away from the silliness of the, and I hope this debate doesn’t do this, where people say all right, raise your hand if you think…
This is one more example that many right wingers who profess to be conservatives and revering the Constitution are neither.
UPDATE: For a good discussion of the historic Republican role in crafting the 14th Amendment take a look at this interview by my colleague Greg Sargent.