Sorry, Republicans: Ending Birthright Citizenship Violates The Constitution

The very amendment that conservatives want to "fix" stands as a shield against government-sanctioned discrimination.
Credit: AP Photo by Justin Hayworth

Key figures in the crowded Republican field have spoken loud and clear about their desire to do away with birthright citizenship for the children of immigrants.

Donald Trump went a step further Tuesday when he said in a CNN interview that children born to immigrants under the present constitutional order "do not have American citizenship."

In other words, the citizenship they were born with is invalid, a notion Trump said he'd be willing to "test out" in a court of law.

But one needs not go that far.

Any congressional act aiming to end birthright citizenship for the children of immigrants -- a move that squarely targets Latinos -- could be found unconstitutional. The same could theoretically be true of a proposed amendment long before it made it into the Constitution.

The reason these proposals could be found unconstitutional is rooted in the very thing Republicans are attacking: the 14th Amendment of the U.S. Constitution.

Because for all the provisions and principles that the 14th Amendment stands for -- and birthright citizenship is only one of them -- one of the amendment's cornerstones is its promise of equal treatment for everyone.

"No State shall ... deny to any person within its jurisdiction the equal protection of the laws," says the last part of Section 1 of the amendment, also known as the equal protection clause. The Supreme Court has ruled that the essence of that clause applies to states and the federal government alike.

Over the years, the clause has been read broadly to mean that no government entity can pass a law that singles out or discriminates against anyone on the basis of their race, national origin or other protected characteristic. It generally means that no official action can treat people differently because of who they are.

That is the principle the Supreme Court has upheld in a number of historic rulings -- from Brown v. Board of Education in 1954 to Obergefell v. Hodges, June's historic gay marriage case.

In the latter, the court applied the 14th Amendment's equal protection clause to invalidate a number of state bans on same-sex marriage, which the court found denied gay couples' right to "equal dignity in the eyes of the law." That is, those bans put them on unequal footing with everyone else.

This concept covers Latinos, too. The Supreme Court long ago ruled that equal protection of the laws applies fully to them -- in a little-known case that, as history would have it, was decided mere days before the landmark Brown ruling. The court has also ruled that equal protection applies to undocumented immigrants.

As a result of this and other precedents, federal courts can and will scrutinize any law or ordinance specifically targeting Latinos. And judges will be punishing in their review, applying a stiff constitutional test known as "strict scrutiny."

"Strict scrutiny, like a Civil War stomach wound, is generally fatal," wrote Supreme Court reporter Adam Liptak in a recent New York Times article. The specifics are complex, but all that basically means is that most discriminatory laws will simply fail under the test.

How courts would react to a proposed constitutional amendment that clashed with the equal protection clause is a bit more complicated due to the lack of precedent, as we say in the law. The Supreme Court has never actually struck down a constitutional amendment that was ratified -- a fact that might discourage lower courts from ruling against even a proposed amendment. And there is an argument that the people can alter the Constitution to say almost anything they want.

But those who support birthright citizenship could argue back that no proposed amendment aiming to take away Americans' rights has so clearly been driven by animus against one ethnic group. Maybe here courts would draw the line and say there are constitutional principles that must govern the Constitution itself.

Lawsuits under the 14th Amendment can be messy, and one would hope that anti-immigrant sentiment never reaches a point that federal courts have to get involved. But if past cases have taught us anything, we can rest assured that the judiciary won't let the likes of Rep. Steve King (R-Iowa) run roughshod over the Constitution with ideas that purport to fix it.

Language has been added to explain the complexity of finding a proposed constitutional amendment unconstitutional.

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