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Why constitutional fights serve both sides

Image: U.S. Sen. Lindsey Graham
Sen. Lindsey Graham, R-S.C. suggested a constitutional amendment to deny automatic citizenship to children of illegal immigrants.Alex Wong / Getty Images file

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.

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 Moveon.org 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.”