Blog of the International Journal of Constitutional Law

An Unconstitutional Constitutional Amendment?

There has been much debate recently over a federal district court ruling that struck down part of Arizona’s controversial immigration law. The ruling essentially said that the Arizona law was preempted because this is an area of federal authority. The Court did not focus on the argument that the law invited racial profiling and other problems. At the same time, the idea is being floated that the 14th Amendment to the U.S. Constitution should be amended to deny U.S. citizenship to a baby that is born to illegal immigrant parents. Supporters of such an amendment even say the amendment’s original drafters would never approve of birthright citizenship. Supporter also argue that such children use up resources, and can become “anchor babies.” Some have even hypothesized these babies could be taken out of the country, trained to become terrorists, and then come back to commit crimes. There are many powerful counter-arguments. Some studies, for example, show that illegal immigrants pay taxes, and actually underutilize public resources. Moreover, the terrorist argument is a red herring according to some former FBI agents.

One very different argument could be made against this amendment derived from other countries such as India, Germany, and South Africa. The argument is that such a constitutional amendment would be unconstitutional. In some of those countries, courts have struck down constitutional amendments, that were passed through the accepted processes, because the courts reasoned the amendments were inconsistent with the most basic values of their fundamental charters. These values include human dignity and freedom. In the U.S. one could argue that this constitutional amendment proposal has similar flaws. As several U.S. Supreme Court cases indicate, laws enacted against groups based on irrational animus are not permitted. Such laws violate equality and dignity interests. Moreover, the Court in Plyer v. Doe held that the children of illegal immigrants cannot be punished for their parent’s misdeeds. The Court there struck down a Texas law as unconstitutional even though it did not burden a fundamental right or a suspect class. The law simply would have charged these children to go to school. Yet the Court concluded this could create a permanent underclass.

Denying birthright citizenship to the children of illegal immigrants would injure their dignity even more, and would also make them permanent second class citizens because of their parents’ actions. To be objective, the current U.S. Supreme Court would likely not find these arguments persuasive in response to passage of a birthright amendment. The amendment processes are treated as sacrosanct. But perhaps this is an area where racial animus and nativism is at play to such an extent, at least with many amendment supporters (though not all), that the Court should not be afraid to look at foreign constitutional law, as it has in some other cases. Perhaps the Court should consider such a draconian constitutional amendment to be unconstitutional.


2 responses to “An Unconstitutional Constitutional Amendment?”

  1. J.S. Avatar

    Unconstitutional constitutional amendments are an interesting topic.

    There’s a big difference here between Germany on the one hand, and India and the United States on the other. In the German Basic Law, and the constitutions of many other nations, certain amendments are expressly forbidden. So judges are on solid ground when they review constitutional amendments.

    In India the constitution imposes no express limitation on amendments, so the case law striking down certain amendments is quite radical. It would also be radical and very controversial for the U.S. Supreme Court to strike down an amendment (that had been passed in accordance with the correct procedure).

    Having glanced at the constitution of South Africa I don’t see in the text any express limitation on the amendment power. Has there been case law suggesting that the SA Supreme Court might follow the Indian path and ‘discover’ a doctrine forbidding certain amendments?

  2. J.S. Avatar

    Maybe you’re referring to the certification process (expressly provided for by the interim constitution) that the current Constitution of South Africa had to go through before it came into force?

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