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HuffPo: Article V? What Article V?

Over at the Huffington Post, “legal affairs reporter” Christian Farias offers up the following constitutional conjecture:

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. The same would be true for a Republican-backed bill with a similar goal that’s pending in Congress.

The reason these proposals would 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.

“No State shall … deny to any person within its jurisdiction the equal protection of the laws,” says the last part of Section 1 of the amendment, also known as the Equal Protection Clause. The Supreme Court has ruled that the clause applies to states and the federal government alike.

Over the years, the clause has been read broadly to mean that no government entity can pass a law that singles out or discriminates against anyone on the basis of their race, national origin or other protected characteristic. It generally means that no official action can treat people differently because of who they are.

I’ll put it kindly: This theory is completely and utterly and disastrously wrong, and I can only hope that it is read and absorbed by as few people as is possible.

From what I can tell, the author is confusing congressional and state law with the Constitution itself — a common enough mistake, albeit one that I wouldn’t expect a high-profile legal correspondent to make. When Farías notes that the 14th Amendment restricts the sorts of laws than can be enforced by the “states and the federal government alike,” he is of course correct. But it does not — and it can not — bind the constitutional amendment process. That contention, I’m afraid, is an inherently circular one. Essentially, what Farías is arguing is that the 14th Amendment can’t be changed or repealed because doing so would violate the 14th Amendment. That’s nonsense. As the document itself makes clear, those who are hoping to make codified alterations need to look only at the rules that are laid out in Article V. Those read:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

To put it another way: Providing that either of the two enumerated ratification processes are employed, the Constitution can be amended in any way that the people see fit (the last line, which relates to the Senate, is an obvious exception to this rule). Its existing makeup, as John Cleese might say, don’t enter into it.

Suppose that the American public decided tomorrow that it was time to repeal the Reconstruction Amendments, and to bring back slavery. That would be abhorrent, certainly. But there would be no legal barriers standing in their way. Likewise, if a super-majority wanted to repeal the Bill of Rights or to abolish the executive branch or to remove the Commerce Clause, it could do so. All that such reformers would have to do in order to bring about these changes is follow the rules as articulated in Article V. That their work might be undoing principles that had been previously laid out within the charter would be wholly and utterly irrelevant. Article V says what it says, and that is all that matters.

If his subsequent justifications are to be trusted, Farías’s mistake seems to have been the product of his having put his personal politics before his objective legal analysis. Because he believes that amending the 14th Amendment to end birthright citizenship would be “terrible,” he reasons that it must therefore be illegal. Because he considers that the proposal is “rooted in animus,” he concludes that it must be beyond the constitutional pale. For what it’s worth, I happen to share Faría’s mistrust of those who would amend the national charter in this way. Legally, though, that’s entirely besides the point. I also consider the 18th Amendment to have been a “terrible” idea, and I am of the view that much of the support in its favor was the consequence of a pronounced “animus” that was directed toward the German, Italian, and Irish immigrants that had filled the country’s larger cities during the late nineteenth and early twentieth centuries. But who cares? The 18th Amendment satisfied the requirements laid out in Article V, and it therefore became law — an enumerated exception to any of the other principles that the document contained. 14 years later, when the people decided that the Prohibition thing wasn’t working out too well, they didn’t conclude that to get rid of their initial amendment would be to illegally contradict it; they got rid of it, and rather pithily, too. That’s how the system works. Let’s not pretend otherwise.

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NPR and PBS routinely present woke opinion as fact, and broadcast views that are anathema to at least half the country. Time to yank their taxpayer dollars.