What’s Really Behind The GOP Rhetoric Against Birthright Citizenship

Is the GOP really serious about changing the citizenship rules in the 14th Amendment ? Not likely.

Doug Mataconis · · 14 comments

In an interview with National Review’s Dan Foster, South Carolina Senator Lindsey Graham talks about why he’s pushing for hearings on altering the 14th Amendment to exclude birthright citizenship:

FOSTER: Isn’t a bit of this, frankly, strategic? Aren’t you looking for ways to bring conservatives on board with the more comprehensive immigration reform that you favor? Is that fair to say? GRAHAM: 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. I’m going to have to be practical. We’re not going to deport or jail 12-14 million people. A practical solution is not awarding this citizenship on day one, but to allow them to stay here on our terms, learn our language, pay a fine, hold a job, and apply for citizenship through the legal process by getting in the back of the legal line. That to me is a practical solution. But, I have to be able to say, as part of doing that, we looked at all the incentives that led to the 12-13 million coming, and we changed them. That we did secure our border, unlike any other time in the past, that we now have laws that make it possible to verify employment; we now have a temporary worker program that will allow people to come here and work on our terms temporarily, and help our employers with labor when they can’t find American labor. I have to be able to say that, because I think most Americans are willing to clean this mess up. They’re not willing to perpetuate it. (…) FOSTER: If you do have to go the amendment route, that’s a pretty uphill battle. GRAHAM: It would be, but I think America is ready to embrace solutions, and we’re ready to do the hard thing. I don’t think it’d be hard to get three-fourths of the states to ratify the amendment. And the amendment would be a simple concept. It would say: Congress shall have the authority to regulate birth-right citizenship. It would be prospectively applied and we would then write statutes. You would not put a statute in the fourteenth amendment. The debate about how to do that would go through the normal legislative process. I think something like that would have a very good chance of being ratified in 34 states because it makes so much sense.

Graham is being entirely facetious here, I think. In reality, it is incredibly difficult to amend the Constitution. Not only does Article V require the consent of 3/4 of the states, it also requires a 2/3 vote in each House of Congress. The number of Amendments that have been proposed but not ratified throughout the past 221 years far outnumbers the 27 that have actually become part of the Constitution. The last time the Constitution was successful amended in the modern era was in 1971 when the 26th Amendment, which gave 18 year-olds the right to vote, was ratified within seven months after it had been passed by Congress. Since then, several amendments, including the Equal Rights Amendment, an amendment to overturn the Supreme Court’s decision declaring flag burning to be protected speech, a Human Life Amendment, and a Balanced Budget Amendment.

There have even been amendments proposed that would accomplish exactly what Graham and other Republicans are talking about now. In 2003, Congressman Mark Foley introduced a proposed Constitutional Amendment that would have said that citizenship only attaches on birth if the mother or father is a citizen or legal resident alien. In a year when Republicans controlled the House the bill had only 16 co-sponsors and it died in Committee. While the political interest in immigration is no doubt more keen today than it was seven years ago, it is hard to believe that Graham and the rest of the GOP would really be able to must the 67 votes in the Senate and 290 votes in the House — not to mention the approval of 38 states — needed to fundamentally alter one of the most important amendments to the Constitution.

So, what’s really going on here ?

Honestly, I think emphasizing birthright citizenship like this, and possibly even holding hearings in the unlikely event that the GOP retakes the Senate in November, is a way for Graham and the rest of the GOP to throw a bone to conservatives on the issue of immigration reform. Even if it goes nowhere, which it won’t, they can turn to their base and say See ? We tried to do something but we just couldn’t. It’s also a way for Graham, who doesn’t face re-election in South Carolina until 2014, to send a olive branch to conservatives in South Carolina who have come to think that he’s gone off the reservation over the past several years on issues like immigration.

Cynical ? Perhaps, but that’s politics.

The truth of the matter is that there is going to be immigration reform of some kind soon, whether it comes in a lame duck session after the election or, more likely, after January. It will include increased emphasis on border security, a broadening of the guest worker program (which will be insisted upon by farming interests on both sides of the aisle), and some form of a “path to normalization” for the people that are here illegally who haven’t committed serious criminal offenses. Graham knows it. The rest of the GOP in Congress knows it. They just need to prepare their base for it.