Last Friday, Sen. Lindsey Graham (R-S.C.) let the cat out of the
bag: his sudden crusade to reform birthright citizenship is
directly related to his need for political cover on amnesty for
illegal immigrants.
“Yeah, I think it’s fair to say that I need to go home to South
Carolina and say: listen, I know we’re all upset that we have
12-14 million people illegally, ” Graham
told National Review’s Daniel Foster. “I’m going to
have to be practical. We’re not going to deport or jail 12-14
million people.” Graham’s practical solution is the same old
“comprehensive immigration reform,” the logic of which is that it
would not be amnesty for grand theft auto if the perpetrator got
to keep the car in exchange for paying a fine and promising to
read the owner’s manual.
Of course, Graham already gave away the game when he entertained
a constitutional amendment to clarify what the 14th Amendment
says about birthright citizenship. The New Republic’s
Jonathan Chait
recently snickered at the number of conservative
constitutional amendments floating around that have been endorsed
by “mainstream Republicans,” but the joke is really on
conservatives: a no-hope constitutional amendment is the usual
way a GOP politician pays lip service to some conservative
concern he plans to do nothing about.
A classic example is the antiabortion human life amendment. At
its peak in 1984, it got 49 votes in a Republican-controlled
Senate with a sympathetic, articulate pro-lifer in the White
House — 18 votes short of passage, two shy of a simple majority.
Fast forward more than twenty years to the federal marriage
amendment. With a 10-seat Republican majority in the Senate and a
sympathetic if inarticulate president, the gay marriage amendment
failed 49 to 48.
What do conservatives have to show for the Republicans’
election-year promises to support the human life amendment and
the federal marriage amendment? Absolutely nothing, unless you
count 37 years of Roe v. Wade and a Supreme Court that
is within Anthony Kennedy’s vote of issuing a similarly sweeping
decision redefining marriage.
Then there is the school prayer amendment, the broader religious
freedom amendment, the balanced budget amendment, the term limits
amendment, the flag-burning amendment, the parents rights
amendment, the victims’ rights amendment and even an old
amendment that was supposed to stop forced busing. None of them
have gone anywhere. Most haven’t even cleared a single chamber of
Congress. Even the more worthwhile ones, like the spending
limitation amendment, will probably never be ratified.
These constitutional amendments are a cheap and easy way to
pretend to deal with issues that fire up the Republican base but
bore the GOP establishment. You know, trivialities like the
sanctity of human life, mounting budget deficits, and the
integrity of the country’s borders and sovereignty. Republicans
will never be expected to pass these amendments or even really
work that hard for them, but they will be able to claim credit on
their position papers.
Even the conservative politicians who are sincere in their
support for these amendments are missing the point. A
constitutional amendment should be proposed to remedy some flaw
in the Constitution. Of the amendments Chait lists in his blog
post, only Sen. Lisa Murkowski’s (R-AK)
proposal arguably fits the bill, if you are of the view that
D.C.’s lack of voting representation in Congress is a flaw.
But the problem in most cases isn’t with the Constitution. The
problem is with the judges our elected officials appoint,
confirm, and then let run amuck. When these judges issue rulings
that bear little resemblance to the original public meaning of
the constitutional provisions they are interpreting, that make a
mockery of self-government, and that otherwise overstep their
bounds, it isn’t good enough to draw up hopeless constitutional
amendments that in many cases simply reassert what the
Constitution already says in the first place.
There is a powerful
case to be made that the reigning interpretation of the 14th
Amendment’s citizenship clause is bogus and could be fixed
legislatively, rather than through constitutional amendment.
There is also Article
III, Section 2 of the Constitution which allows Congress to
regulate the jurisdiction of the federal courts, including the
Supreme Court. The elected branches of the federal government
already have the constitutional authority to fight back against
— and even end — judicial activism.
In 2004, while the Republicans still controlled Congress, a
jurisdiction-stripping bill intended to reinforce the 1996
Defense of Marriage Act actually passed the House. The Bush
administration said the president would sign it. If the Senate
had acted on it rather than wasting its time with the federal
marriage amendment, the debate over that particular issue might
look very different than it does right now. Instead the bill died
in committee, in keeping with GOP senators’ priorities.
If conservatives have a different set of priorities,
constitutional amendments with little chance of passage should be
very low on that list.
