A writer for The Huffington Post has come up with a novel rebuttal to Donald Trump and other Republicans who advocate amending the U.S. Constitution to eliminate birthright citizenship: It’s unconstitutional!
“It turns out that the very idea of amending the Constitution to end birthright citizenship for the children of immigrants — a move that squarely targets Latinos — would probably be found unconstitutional,” argues Cristian Farias, a legal affairs writer for the site.
Farias justifies his argument by citing the 14th Amendment, itself a later addition to the Constitution.
“‘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 clause applies to states and the federal government alike,” writes Farias. “It generally means that no official action can treat people differently because of who they are.”
In other words, Farias says the U.S. Constitution can’t be amended, because it would go against the Constitution as it currently reads.
Despite being an alleged expert in legal affairs, Farias’s writing appears to show substantial ignorance about the nature of the Constitution and the amendment process. Article V of the Constitution allows for it to be amended so long as two-thirds of each house of Congress and three-fourths of the states approve. Contrary to what Farias appears to believe, previous amendments have been passed that totally reversed what the Constitution said before. Notably, the 18th Amendment banned the sale of alcohol in the United States, and then the 21st Amendment, passed 13 years later, completely repealed that amendment.
Other examples abound. For instance, the 17th Amendment, enacting direct popular election of U.S. senators, flatly contradicts earlier constitutional language decreeing that senators be chosen by state legislatures.
Farias’s argument takes on even more water when one recognizes that the Constitution actually already has a provision that is excluded from the ordinary amendment process. Article V, which outlines the amendment process, prohibits any amendment that deprives states of equal suffrage in the Senate unless each affected state individually consents.
A genuinely “unamendable amendment” has been considered in the past. Shortly before the Civil War, Congress passed (and several states ratified) the Corwin Amendment, which would have categorically banned any future amendments attempting to abolish domestic state practices– then including slavery. The amendment even won the endorsement of Abraham Lincoln before the outbreak of war caused it to fall by the wayside.