Image: U.S. Sen. Lindsey Graham
Alex Wong  /  Getty Images file
Sen. Lindsey Graham, R-S.C. suggested a constitutional amendment to deny automatic citizenship to children of illegal immigrants.
By Tom Curry National affairs writer
updated 8/6/2010 4:03:08 PM ET 2010-08-06T20:03:08

For activists both on the left and on the right, amending the Constitution suddenly seems to be a compelling idea.

For the right, ending birthright citizenship for children of illegal immigrants is the hot issue demanding a constitutional change. On the left, the cause is curbing big business by reversing the Supreme Court's decision which permits corporate political advertising.

And a constitutional change rejected in 2006 may get renewed attention due to a federal court ruling this week.

The Marriage Protection Amendment, which declared that "marriage in the United States shall consist only of the union of a man and a woman," was rejected by the Senate in 2006 partly because opponents were able to argue that same-sex marriage was merely a hypothetical possibility in all but a couple of states.

But a federal judge in California ruled this week that same-sex couples have a fundamental right to marry that is guaranteed by the U.S. Constitution. Another federal judge in Massachusetts last month struck down the federal government’s decision not to recognize same-sex marriages.

These decisions prompted one conservative legal commentator, UCLA law professor Eugene Volokh, to suggest Congress might take a new look at a constitutional amendment to protect states’ rights to not recognize same-sex marriages.

Why resort to a cumbersome procedure?
In an age of instant messaging and fleeting attention spans, why resort to the lengthy and cumbersome 18th century procedure of amending the Constitution?

One reason: if the Supreme Court hands down an unpopular decision, the only way to reverse it — other than waiting years for new justices who might undo it — is by amending the Constitution. (This was the case, for example, with the income tax amendment in 1913, which reversed an 1895 Supreme Court decision.)

But even if they're not ratified, amendments can serve as rallying points for activists.

Cases in point: the balanced budget constitutional amendment in 1995, and the one offered in 1983 by Sen. Orrin Hatch, R-Utah, which declared “a right to abortion is not secured by this Constitution.”

A constitutional battle has no early outcome, but it's politically useful for both sides.

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Lisa Graves, a former Democratic Senate staffer who is now executive director of the Center for Media and Democracy, said Republicans' decision to propose a constitutional amendment on citizenship “shows that the Right has no hesitation in resorting to constitutional amendments as an organizing tool. They continue to see an amendment as an important way of elevating an issue in the public conversation and of rallying their base.”

How the battle helps Democrats
For Democrats, the furor over the citizenship provision in the 14th Amendment also serves a useful purpose: it allows them to paint Republicans as zealots who seek to repeal the entire amendment.

Republicans are "raising the possibility of ending this amendment," said New Mexico Gov. Bill Richardson, a Democrat.

If Republicans really sought to "end" or repeal the entire 14th Amendment that would mean doing away with all of its provisions, including the Due Process Clause, which the Supreme Court has used to uphold legal abortion and to overturn anti-sodomy laws.

But neither Sen Lindsey Graham, R-S.C., who proposed a constitutional amendment to end birthright citizenship last week, nor any other Republican in Congress, has raised the possibility of repealing the entire 14th Amendment.

Graham argued against the prevailing interpretation of a clause in the 14th amendment which allows children born to illegal immigrant mothers on U.S. soil to be granted citizenship automatically.

At issue is the opening sentence of 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 the State wherein they reside.”

Some conservative scholars question whether the phrase “subject to the jurisdiction” of the United States means that any person born on American soil is automatically a citizen.

Senate Republican leader Mitch McConnell said the Senate “ought to take a look at it — hold hearings, listen to the experts on it.”

It was a sudden surge of interest in an idea which got scant attention when Rep. Ron Paul, R-Texas, offered his proposed constitutional amendment in 2003.

His amendment would deny citizenship to children born in the United States to parents who are neither United States citizens nor persons who owe permanent allegiance to the United States.

Progressives pushing their own amendment
Even as conservatives are talking about redesigning citizenship, progressives are building support for their own constitutional change.

That measure, proposed by Rep. Donna Edwards, D-Md., would rescind last January’s Supreme Court decision, Citizens United v. FEC, which allows corporations to pay for advertising that expressly advocates the election or defeat of candidates.

“We couldn’t have a clearer statement about what’s wrong with the direction of the law… We must overturn this Supreme Court decision,” Graves told the Netroots Nation convention of progressives in Las Vegas last month.

Groups such as and People for the American Way are rallying their members to support the Edwards amendment.

Graves said for Democrats the constitutional amendment can be "a valuable small ‘d’ democratic tool to rally people in the middle and on the progressive side of the spectrum as well as libertarians they might be able to appeal to.” 

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Video: Discussing birthright citizenship

  1. Transcript of: Discussing birthright citizenship

    MATTHEWS: born to illegal immigrants in the U.S. become American citizens, like anyone else. Yesterday, Republican Senator Jon Kyl of Arizona questioned that reading of the law . Here he is on CBS ` " Face the Nation ."

    SEN. JON KYL , MINORITY WHIP: There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States , you are a citizen no matter what. The question is, if both parents are here illegally, should there be a reward for their illegal behavior? And what I suggested -- my colleague Lindsey Graham from South Carolina suggested that we pursue that. And what I suggested to him was that we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.

    MATTHEWS: Well, joining us right now is New Mexico Governor Bill Richardson . Mr. -- Governor Richardson , it`s great to have you on. You have a personal life that sort of reflects this reality.

    MATTHEWS: You want to tell us how you got to be -- Bill Richardson got to be an American? GOV. BILL RICHARDSON (D), NEW MEXICO : Well, Chris , my mother is Mexican. My father was an American. I was raised in Mexico . I`m part of the American dream . I was born in Pasadena , California . But this is an issue that really is emblematic of what we are as Americans. This 14th Amendment was a civil rights measure for elected officials guaranteeing equal protection under the law. I mean, it -- it shows how far and how badly this immigration debate is going, when we`re questioning the 14th Amendment , which was basically put in at the time to protect those with African heritage. It was already federal law . Supporters of the constitutional amendment wanted to make sure that those with African heritage were protected equally under the law. Now, in this immigration debate , this anti-immigration rhetoric, they`re raising the possible of ending this amendment. I don`t take it seriously, but it`s part of a very strong anti-immigrant sentiment.

    MATTHEWS: You know, Lindsey Graham , who is not anti-immigrant -- he`s been pretty positive over the years and sticking his neck out, in fact, as a Republican pushing for immigration reform -- but let`s listen to the language he used to talk about this issue. I think it`s pretty cold language, but he used it. Here he is on FOX last week.

    SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA : I may introduce a constitutional amendment that changes the rules if you have a child here. Birthright citizenship I think is a mistake, that we should change our Constitution and say if you come here illegally and you have a child , that child `s automatically not a citizen . People come here to have babies. They come here to drop a child . It`s called "drop and leave." To have a child in America , they cross the border, they go to the emergency room, have a child , and that child `s automatically an American citizen . That shouldn`t be the case. That attracts people here for all the wrong reasons.

    MATTHEWS: Well, I don`t know what you think of that language. What do you think of that, drop a baby here? What do you think of that, a pretty cold way of saying something, of...

    RICHARDSON: Well, and I agree with you. Lindsey Graham , Senator Graham , and Senator Kyl , too, recognize the problem that we have with undocumented workers. We do need comprehensive immigration reform . But I`m, frankly, surprised that he`s saying this, because this is a provision, 14th Amendment , child born in America is an American. And I don`t think this effort will get very far. But it`s part of an anti-immigrant sentiment that...


    RICHARDSON: ... I believe is very bad, unless we have comprehensive immigration reform , Chris .

    MATTHEWS: Well, it seems to me there`s a number of these cases this gets to. First of all, if you`re here on a student visa , two students from abroad, and they have a baby here, well, it is an American, darn it. That`s a fact. If you`re here on a tourist visa and you have a kid here, that`s an American. That`s a fact. If you`re here on a green card, you`re here, a legal -- a resident, if you`re not a citizen , that`s a baby -- that`s an American baby . These are all facts. I guess he`s getting at something which is sort of weak underbelly of the law where somebody would come here just to create a baby here in the United States for that only purpose. Come in, have the baby, get out again. So you can say the baby is an American. What do you think of that case? Should that still be the law? Still honoring the 14th Amendment ?

    RICHARDSON: Yes, we should honor the 14th Amendment . The reality is that immigrants come in to America , undocumented workers, to improve their economic situation, to get jobs. They`re fleeing desperate situations in Mexico and Central America where there`s no future. And those immigrants many times become a strong part of our economy. And the reality is, Chris , that, you know, this was done for a very good reason, to protect those from African heritage --

    MATTHEWS: I know.

    RICHARDSON: -- that many felt were going to be denied this ability to be Americans.

    MATTHEWS: Let me ask you about the politics of this, because clearly, this is another example. If I were Hispanic , if I were Latino , I think I`d hear some ethnic anger at me. If I heard it somebody was talking -- even like Lindsey Graham who`s normally quite a decent guy. In fact, he is a decent guy -- talking like this. Does this strike at the heart of people -- well, you -- did you take it personal? Did you say, "Wait a minute, this guy is getting a little ethnic here"?

    RICHARDSON: Well, it does. I mean, it gets personal. And a lot of this Arizona law, for a lot of Hispanics , gets personal because, obviously, there`s going to be racial profiling. Who are you going to go after? Somebody that looks like me, somebody that looks Latino . You`re not going after a blond like Lindsey Graham who`s a good man and who I like. But the problem here is that failure to act on a comprehensive bill, the Congress failing to act --

    MATTHEWS: Yes.

    RICHARDSON: -- is causing all this hysteria -- all the state that take actions on their own and these unfortunate comments.

    MATTHEWS: I wonder if they`re serious, that`s my question. I wonder if anybody is going to go to three quarters of the states to try to amend the Constitution over a few thousand cases a year that are incidental like this. Anyway, thank you, Governor . It`s great to have you on. I`m a big fan of Bill Richardson . Thanks for coming on the show.


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