“Can you explain what SCOTUS can do about birthright citizenship when it’s in the Constitution? How are they able to overturn the 14th Amendment?”
— Peggy Giegucz, Pittsburgh
Hi Peggy,
The Supreme Court can’t overturn a constitutional amendment. But it can interpret the Constitution to make it seem like it’s overturning or at least contorting it. In other words, when the court hears an appeal involving the Constitution, it analyzes how it applies in a given case — whether that’s what the First Amendment means for speech, the Second Amendment means for guns, and so on. Throughout the court’s history, dissenting justices have accused majorities of construing constitutional provisions contrary to their meaning and purpose.
When it comes to birthright citizenship, we might soon learn what the justices have to say about that provision of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Cases on the subject are making their way through the nation’s courts. So far, judges have roundly rejected the Trump administration. Just this week, a three-judge panel of the Boston-based federal appeals court handed the government its latest loss, after appellate panels based in San Francisco and Richmond likewise declined to lift trial court rulings against the administration while it appeals.
On Thursday, Trump asked the justices to halt the nationwide scope of those trial court rulings, which are keeping his policy on hold nationwide. To be sure, the justices could resolve this pending appeal without weighing in on the ultimate question of what they think the 14th Amendment protects. But how they address Trump’s procedural challenge could provide clues about how they would decide the underlying merits of his executive order. If the Supreme Court eventually rules — contrary to longstanding precedent and historical evidence — that the Constitution doesn’t protect birthright citizenship, then whether the court would be literally overturning the 14th Amendment as opposed to gutting, betraying or undermining it could be a semantic argument, given how difficult it is to further amend the Constitution. In theory, of course, the people and their elected representatives can vote to amend the Constitution in response to an unpopular Supreme Court ruling. In fact, the 14th Amendment did just that, effectively overturning the infamous Dred Scott ruling that affirmed slavery. But even if Americans somehow passed a new constitutional amendment making birthright citizenship clearer than it already is, the Supreme Court could attempt to undermine it through a creative interpretation. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
