The “Birthright Citizenship” Gambit

It is famously difficult to amend the United States Constitution, requiring two-thirds of both houses of Congress to agree, or three-fourths of the states, through their legislatures or constitutional conventions. (See U.S. Constitution, Article V) If the process sounds unwieldy and complex, it is, and for a good reason: to shield the Constitution from the shifting winds of political debate.

For politicians representing a minority opinion, proposing Constitutional amendments can be a tempting gambit, holding out the possibility of achieving by extraordinary means the ordinary political objectives they could not achieve through normal legislative channels. For the individual politician, the upside to proposing such an amendment is considerable; it makes a big splash, and conveys an impression that the politician means to do serious battle for his or her supporters. Besides, nobody can really blame you if you fail to deliver two-thirds of both houses to make the amendment pass, and you can introduce new versions of the proposal ad nauseam – at least until your supporters catch on that the amendment is never going to pass.

Although Senator Lindsey Graham (R-SC) gives the impression of being a very serious-minded legislator, one wonders what brought him to the conclusion that the only way to fix our broken immigration system is to amend the Constitution to eliminate “birthright” citizenship, granted to all who are born in this country, by dint of the 14th Amendment. Senator Graham is anything but a lightweight, and has shown an admirable willingness to buck his own party from time to time. Perhaps his sallies against “birthright citizenship” should be viewed as an attempt to mend fences with his party, after he became the lone GOP Senator who dared to work with the Democrats on CIR.

If Senator Graham is merely frustrated, perhaps he would consider exhausting local remedies first, coming back to the bargaining table to work out a bipartisan bill that could pass both houses, rather than toying with an “end run” around the normal legislative process. The point of his recent huffing and puffing about birthright citizenship, though, seems to be that the legislative process cannot possibly deliver anything that would be acceptable to the key GOP constituencies that are currently so exercised about immigration issues.

One suspects Senator Graham is well aware that ending birthright citizenship would do little or nothing to fix the current immigration mess, but would make a big swath of the party faithful happy – and happier with him for each passing day that he’s beaten up in the press for making such an outrageous proposal. When Homeland Security Secretary Janet Napolitano took Graham and his GOP colleagues to task for talking about changing the 14th Amendment when they had worked assiduously to block any comprehensive immigration reform effort, one wonders whether this was precisely what Senator Graham wanted: to draw the ire of Democrats, and thereby look heroic to his own side of the aisle. (See Janet Napolitano: Amending 14th Amendment ‘Just Wrong,’ by Stephanie Condon, CBS News, Political Hotsheet, 13.Aug.2010.)

The CBS News article quoted White House Press Secretary Robert Gibbs, commenting on the irony of the situation: “It is always interesting that those that have with steadfast fidelity talked about not tampering with our Constitution have now swerved to pick the 14th Amendment as the best place to address comprehensive immigration reform,” noting that the 14th amendment also ensures equal protection and due process, “two things that don’t need to be tampered with.”

Not everyone on the political Right agrees with Senator Graham. Alberto Gonzales – a controversial figure in his own right, who served as White House Counsel and later as Attorney General in the George W. Bush administration – has come out against the idea of jettisoning birthright citizenship. (See Alberto Gonzales: Changing the 14th Amendment Won’t Solve our Immigration Crisis, Washington Post, 22.Aug.2010.) Gonzales blames Congressional Republicans for failing to help President Bush pass CIR, and accuses Democrats of lacking the will to pass CIR now, keeping the issue alive “hoping that Republicans will propose enforcement measures that alienate Hispanic voters.” Leaving aside the former AG’s somewhat bizarre suggestions – that lockstep GOP opposition to CIR, and draconian measures like S.B. 1070 are all part of some Democratic scheme – his fundamental point is well taken:

I do not support such an amendment. Based on principles from my tenure as a judge, I think constitutional amendments should be reserved for extraordinary circumstances that we cannot address effectively through legislation or regulation. Because most undocumented workers come here to provide for themselves and their families, a constitutional amendment will not solve our immigration crisis.

Hear, hear – and Senator Graham, please take note!