I’m torn between thinking this is one of the most inane legal analyses ever to come out of a lefty blog and that it’s simply the logical conclusion of the “Living Constitution” ethos. If the Constitution is just a vehicle for judges to impose their moral preferences on the majority, why should they let a constitutional amendment stand in the way? If America passed an amendment tomorrow overturning the gay-marriage ruling in Obergefell, I’d say there’s a nonzero chance that some liberal judge somewhere would decide that that amendment simply can’t be read consistently with the Equal Protection Clause and therefore is “moot” or whatever.
Ace’s co-blogger Drew McCoy tweeted this morning that if we ever did reach the point where the Supreme Court rejected a constitutional amendment, defying Article V and cutting off the people’s supreme democratic right to assert their will on any policy matter with a supermajority, it would be time for armed rebellion. Quite right. That would be a coup, nothing less. So here’s HuffPo contributor Cristian Farias apparently endorsing a coup:
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. The same would be true for a Republican-backed bill with a similar goal that’s pending in Congress…
[F]or 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…
[F]ederal 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.”…
So if any of the GOP proposals to strip immigrant children of birthright citizenship make it into law, it won’t be long before they are challenged in court and, ultimately, found unconstitutional.
If that doesn’t make sense to you, no worries. He “clarified” on Twitter:
— Cristian Farías ☕️ (@cristianafarias) August 20, 2015
This guy is billed at HuffPo as a “Legal Affairs Writer.”
What he’s doing here, if you’re unfamiliar with equal protection jurisprudence or elementary-school civics, is confusing how the Court treats federal statutes with how it would treat a constitutional amendment. A law passed by Congress and signed by the president is an expression of simple majority will; it governs the country unless it’s found to conflict with the Constitution, which is the supreme law of the land by dint of its supermajority ratification. If Congress passed a law attempting to redefine birthright citizenship in the Fourteenth Amendment so that it didn’t apply to children of illegals, Farias is right that it would probably be struck down — although not because it violates the Equal Protection Clause, in all likelihood, but because it conflicts with how the Court would define “jurisdiction” in the opening of the Fourteenth Amendment. Equal protection challenges are unpredictable, but I’d bet that a birthright citizenship reform would pass muster. So long as it didn’t single out any class of illegals by race, i.e. children of illegals born here are citizens unless they’re Latino, my hunch is the Court would find that there’s enough of a state interest in discouraging illegal immigration that Congress is entitled to limit citizenship to children of people who are here legally. If that’s unconstitutional discrimination because it’s “anti-immigrant” (anti-illegal-immigrant, to be precise), presumably deportation is also unconstitutional. The Constitution can’t possibly require America to go on absorbing foreign populations ad infinitum because it’s “discriminatory” to reward people who followed the rules instead of those who didn’t.
That’s how the Court would wrestle with a statute in deciding whether it conflicts with the Fourteenth Amendment. If the amendment itself were amended, though, to limit birthright citizenship to people who are here legally, then there’s nothing to wrestle with. The new limitation would be part of the Constitution via supermajority ratification, and the Constitution — wait for it — can’t be unconstitutional by definition. If anything, the Court would be forced to strike down any statutes in the future that attempted to restore birthright citizenship to children of illegals since that would obviously be in conflict with the new, revised Fourteenth Amendment. Either Farias doesn’t grasp what makes something “unconstitutional” or he’s proposing something like substantive due process for constitutional amendments, where the Court would take it upon itself to decide that certain unwritten principles hidden in the “penumbras” or whatever of the rest of the Constitution tacitly prohibit certain types of new amendments from being enacted, even if the proper Article V procedures are followed. As I say: Armed rebellion.
But this is neither here nor there. There’s not going to be any revision to the Fourteenth Amendment on birthright citizenship unless Congress forces the issue by passing a law and Anthony Kennedy comes down from the mountain to say that God told him it’s constitutional. The birthright-citizenship debate is just a campaign football. Here’s a new ad from Hillary that’s trying to be a long pass to the end zone.