It’s very difficult to change the Constitution — on purpose

It’s very difficult to change the Constitution — on purpose
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Any reader of English can readily conclude that President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE cannot unilaterally revoke the 14th Amendment’s mandate that “all persons born or naturalized in the United States” are, in fact, “citizens of the United States” with a stroke of a pen.

The text here is plain — “all persons” — so it’s somewhat ironic that Trump is defying the oft-conservative mantra that the language of the Constitution always controls. (Children of accredited foreign diplomats are excepted because their parents aren’t “subject to the jurisdiction” of the United States under the 14th Amendment).

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The Constitution is the boss of the legal bosses. It binds everyone — including members of Congress, federal judges, and the president. Congress passes laws, but so do executive branch agencies (via regulations) and the president (via executive orders). Federal judges decide whether the actions of the other two branches comport with the Constitution. This latter tidbit is not laid out in the constitutional text itself — the Supreme Court made it the law in 1803 in a famous decision called Marbury v. Madison.

These days, it would hardly come as a surprise if Trump were to one day declare that Marbury is wrong and that he gets to interpret the language of the Constitution in the first instance. Even in that event, his claim that the 14th Amendment can be blotted out by executive order wouldn’t fly.

The constitutional text is not ambiguous and executive orders don’t trump the constitutional text (pun intended).

Under the Obama administration, as well, concerns over illegal immigration prompted some Republicans to question the so-called “birthright citizenship” clause of the 14th Amendment. A CBS News poll conducted in 2010 found that 54 percent of Republicans thought that the Constitution should be changed to bar children of illegal immigrants from becoming citizens. But back then, the debate was intellectually honest — with Sen. Lindsey GrahamLindsey Olin GrahamOval Office clash ups chances of shutdown Republicans skeptical of Trump’s plan to have military build the wall Corker to introduce resolution holding Saudi crown prince 'responsible' for Khashoggi's death MORE (R-S.C.) floating the idea of a constitutional amendment, in sharp contrast to his spurious announcement on Tuesday that he’ll try to do it by legislation.

Even in an intellectually honest environment, however, any suggestion of amending core provisions of the Constitution — for any purpose — should be considered with extreme trepidation. There are two pathways to a constitutional amendment under Article V of the Constitution: through Congress, if a two-thirds majority of both chambers wants one, or through the states, if two-thirds of the state legislatures (currently 34) call for a national convention. To date, 33 of the approximately 11,699 amendments proposed in Congress since 1789 were sent to the states for ratification. Only 27 have been ratified. All of these came through Congress.

Once a constitutional amendment is proposed through one of these two pathways, it must be sent to the states for ratification. Thus, before an amendment abolishing the “birthright citizenship” provision of the 14th Amendment could become law, a whopping three-fourths of the state legislatures (currently 38) would have to ratify it. (States could also do it by means of state conventions). 

Today, people across the nation are trying to clear the second pathway for amending the Constitution — i.e., the calling of another constitutional convention. This little-known fact is an extraordinary one. The last time it happened was 1787, and it ended up producing an entirely new document (the Constitution) rather than amending the prior one (the Articles of Confederation) — even though an amendment process was the convention’s ostensible purpose. 

To date, 28 of the required 34 state legislatures have bills calling for a convention, and in seven more, both houses of the legislature are controlled by Republicans — an encouraging fact for conservative groups seeking a balanced budget amendment, among other changes. Some liberal groups have supported a convention as a means of overturning the Supreme Court’s decision in Citizens United v. Federal Election Commission, which largely greenlighted corporate money in politics. 

If a national constitutional convention were held, all of our rights under the current Constitution, and all of the government’s reciprocal obligations, would be up for grabs. Nothing in the Constitution constrains the process that would apply if a convention is actually called. Anything could go, including the process for ratification itself, and there would be no Constitution cop on the block to ensure that things don’t go seriously haywire.

It’s not difficult to imagine a revised Constitution abolishing federal taxes (and thus the federal government itself), for example, or deeming that life begins at conception (thus opening up a new frontier of homicide law). Even the late Supreme Court Justice Antonin Scalia, an intellectual giant in conservative legal circles, said in 2015 that “[a] constitutional convention is a horrible idea. This is not a good century to write a constitution.” 

Trump’s failing grade on constitutional basics makes the birthright citizenship question more about politics than reality. Those of us who believe in the values underlying the 14th Amendment should take comfort in the fact that the process for ratifying changes to the Constitution is a laborious one that requires a supermajority consensus across the nation. 

Nonetheless, as constitutional boundaries are pushed in unprecedented, rapid-fire ways under the Trump administration and an obedient Congress, Americans need to be very careful about poking a sleeping dragon when it comes to altering the Constitution itself. 

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book is How to Read the Constitution and Why. Follow her on Twitter at @kim_wehle.