Odd Claim that Effort to Amend Constitution to Eliminate Birthright Citizenship Would Be Unconstitutional

Cristian Farias for HuffPo:

It turns out that an amendment aiming to change the Constitution to end birthright citizenship for the children of immigrants — a move that squarely targets Latinos — could theoretically be found unconstitutional long before it could make it into the document in the first place. The same would be true for a Republican-backed bill with a similar goal that’s pending in Congress.

The reason these proposals could be found unconstitutional is rooted in the very thing Republicans are attacking: the 14th Amendment of the U.S. Constitution.

Because for 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.

There’s an update/correction to the piece which reads as follows:

Language has been changed to reflect that an effort to change the Constitution to revoke birthright citizenship could in theory be found unconstitutional before any proposed legislation became an official part of the document.

[The original language said: “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” [my emphasis).]

I don’t understand this at all. Although there is some literature suggesting that in theory there could be “unconstitutional constitutional amendments,” what Farias seems to be suggesting is that if someone in Congress proposed a constitutional amendment to overturn the birthright citizenship provision of the 14th Amendment, that someone could go to court and stop that proposed amendment from being circulated on grounds it would be rooted in animus and a violation of the 14th Amendment.

I find this quite hard to imagine. First, there would be great justiciability questions to such a claim before it even passed. Who would have standing to challenge? Is the claim ripe?

And on the merits, I cannot believe that if this country actually passed such a constitutional amendment (which thankfully would not happen in any case), that the Supreme Court would say it is invalid because it goes against the very amendment that the amendment overturned. As Derek Muller tweeted today, it is like saying the amendment overruling prohibition would be unconstitutional because of an existing amendment allowing prohibition. And I don’t think eliminating birthright citizenship would be such a profound change to the constitutional structure so as to be seen as an improper amendment to the Constitution.

Anyway, it was an odd story with a correction which seems to weaken the case.

UPDATE: The story has again been changed significantly.  You can find the original version here.

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