Effort to Repeal 14th Amendment Canny like a Fox

Sam Fulwood wonders whether enough voters will fall for repeated conservative calls to restrict the rights of American-born children.

Part of a Series
The U.S. Constitution, pictured here on display at the National Archives, protects the citizenship rights of anyone born on U.S. soil. (AP/Ron Edmonds)
The U.S. Constitution, pictured here on display at the National Archives, protects the citizenship rights of anyone born on U.S. soil. (AP/Ron Edmonds)

I’m flummoxed by the far-right conservatives’ call for repeal of the 14th Amendment. Do they really think they will be held only to the standards of Fox News—where ratings, not political accomplishments are what matter—by the voters to whom they think this ideal appeals?

Or are these conservatives canny like a fox, luring some voters with promises of repeal when all they really want to do is capture their votes, not just this fall but over and over again. It’s the same strategy conservatives draw upon with antiabortion voters without ever actually trying to pass a constitutional amendment to ban abortions.

Now here come a handful of senators—Mitch McConnell, John McCain, Lindsey Graham, Jeff Sessions and Jon Kyl, all conservative standard-bearers on immigration issues—proposing congressional hearings to debate whether children born of undocumented immigrants on U.S. soil should be granted automatic citizenship. I understand this is a thinly disguised effort to fan populist flames in advance of the November midterm congressional elections. That’s clear and obvious. But are they serious about sustaining the effort over the long haul it would take to repeal the 14th Amendment?

Calls for repeal of the 14th Amendment aren’t new. For the most part, however, such arguments were made by the nativist or lunatic fringe of political respectability. But that changed recently when Sen. Lindsey Graham (R-SC), who had been a moderate voice within the GOP on immigration issues, called it a "mistake" for the Constitution to be interpreted to allow birthright citizenship to undocumented immigrants’ children.

So Graham wants to revisit settled law that grants citizenship to anyone born in this nation. Let’s be honest and clear here. Sen. Graham and other opponents to birthright citizenship are talking almost exclusively about Mexicans that cross our southern border. This point was emphasized, impossibly and illogically, when Graham told Fox News that "We can’t just have people swimming across the river having children here. That’s chaos."

Since Graham raised the subject others have joined him, notably Senate Minority Leader Mitch McConnell (R-KY), who signaled he and others don’t expect to change the Constitution—only to use the threat as a way to stir the political pot on immigration issues. "I am not aware of anybody who has come out in favor of altering the 14th Amendment," he said last week, but went on to say hearings on the subject might be a good thing.

Sorry, Mitch, but I don’t see how you or your party stands to come out of this whole. As any 10th grade U.S. history student ought to be able to tell you, repeal of any Constitutional amendment is an impossibly steep climb. In the best-case scenario, a super majority of Congress would support the repeal and three-fourths of the state legislatures would have to ratify for the change to take place. The last time the Supreme Court did anything remotely like refusing citizenship rights to someone born in the United States was in 1857 when the infamous Dred Scott v. Sanford case held that a former slave Scott couldn’t claim citizenship in the United States.

In practical political terms, the 14th Amendment was enacted in 1868 as a Reconstruction-era smack down of the Dred Scott decision, guaranteeing black Americans and their children full, birthright citizenship. Can it be possible that, after all these years and all its history—the Civil War, Reconstruction, Jim Crow, and the Civil Rights Movement—some conservatives want to discuss returning to a pre-slavery standard for American citizenship?

Aside from the impracticality of dispossessing Americans of their rights, any public airing of the facts surrounding this issue would reveal that the Supreme Court has clearly and repeatedly decided this matter. In U.S. v Wong Kim Ark, the high courts ruled 6-2 in 1898 that a man of Chinese ancestry was a U.S. citizen because he was born in this country. More recently, the Supreme Court said this in the 1982 Plyer v. Doe cases:

The 14th Amendment extends to anyone, citizen or stranger, who is subject to the laws of a state, and reaches into every corner of a state’s territory. That a person’s initial entry into a state, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the state’s territorial perimeter.

When such facts become publicly known and understood, how do conservatives crawl back from the ledge? Surely, some of their clearer-thinking supporters will be angry to learn that the senators knew all along that this was a fool’s errand, nothing more than political gamesmanship. And how will mainstream conservatives in the Republican Party and party loyalists react to an assault on the 14th Amendment? The amendment was crafted by the GOP and is still touted among its earliest and proudest moments in history? I suspect some will feel duped and may turn on the party.

So why are these senators even talking about something that’s entrenched in American law and unlikely to change? What is their ultimate objective? No question, the repeal movement aims to stoke misguided fears, mainly because the popular—and wrong—argument goes that so-called "anchor babies" pave the way for their parents to climb on the public dole. That’s just not true—a child born in this country can’t bring parents to this country until after they become 21 years old, destroying the foundational argument that birthright citizenship is a clear and present danger to U.S. taxpayers.

Congressional hearings will reveal these and other incontrovertible facts about Americans born to immigrants, documented and undocumented alike. Maybe one or two congressional seats may swing with the issue if congressional hearings are held before November 3, but it’s a long-term losing proposition for candidates who dare attach themselves to it. Plus, if they’re honest with themselves and their supporters, they know they cannot possibly persuade enough Americans to amend the Constitution—even if they really, really were serious about trying to do so. No, it’s just better to have a go-to issue that excites and rallies the faithful when the need arises.

What’s worse, the spectacle of watching archconservative GOP senators using their party as a weapon against aspiring U.S. citizens can’t sit well with Republicans of immigrant heritage—most of whom, it is safe to say, are immensely proud of their immigrant heritage. In fact, more moderate Republicans are already calculating that the negative costs far outweigh any positive benefit in November with Latino voters, who are among the fastest growing segment of the political landscape.

Alfonso Aguilar, executive director of the Latino Partnership for Conservative Principles, which recruits Latino voters for GOP candidates and causes, told The New York Times his party was making a terrible mistake with talk of repealing the 14th Amendment. "This type of position may help you win a few elections," he said. "But you are damaging relations with the Latino community."

So what do these right-wingers expect to accomplish with this reckless endeavor? Do they really believe they can string out some voters over and over with the false promise of repealing the 14th Amendment? You decide.

Sam Fulwood III is a Senior Fellow at the Center for American Progress. His work with the Center’s Progress 2050 examines the impact of polices on the nation when there will be no clear racial or ethnic majority by the year 2050.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.


Sam Fulwood III

Senior Fellow

Explore The Series

President Barack Obama delivers his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, January 12, 2016. (AP/Evan Vucci)