United States Constitution Archives

In Spotsylvania County, the Board of Supervisors is calling for Virginia to support a gathering of state governments to amend the Constitution. But legal scholars see serious problems with the idea.

Interesting things are afoot in the municipal governments of central Virginia. Last month, the Spotsylvania County Board of Supervisors passed a resolution to encourage the Virginia state legislature to support a convention of states. Before we go on, let’s begin by explaining what that is.

There are two methods by which the US Constitution can be altered. The first requires a proposal by Congress with two-thirds approval in both houses. Although it has never been done, Article V permits a second method, in which Congress can call a “convention of states” to amend the Constitution, following the passage of resolutions from two thirds of the states.

Today, such a convention is closer to reality than it ever has been, as a result of efforts from groups like Convention of States.

In Spotsylvania County, Supervisor David Ross initiated the resolution, which passed in a 5-2 vote by the Spotsylvania Board of Supervisors on February 12.

“I was contacted by two gentlemen [John Dahmen and Trevor Wells from Convention of States Virginia] who have dedicated a good amount of time considering this subject and wanted the Spotsy Board of Supervisors to send a resolution to the General Assembly encouraging their support of calling [a convention],” Ross said.

Ross said his inspiration for calling a convention of states stems from a desire to limit the spending of the federal government.

“I believe we need a balanced budget amendment to the Constitution – that our spending / debt by both parties is out of control and that it is unfair to our children to pass our spending for them to repay and or deal with,” he said.

Ross also advocated for a constitutional amendment pertaining to term limits.

“No one should be able to make a career out of being a representative,” he added.

Mark Meckler, who co-founded the Tea Party Patriots before parting ways with the organization in 2012, is the current president of Convention of States Action, the parent organization of Convention of States Virginia. Meckler made clear that COS isn’t advocating for a total rewrite of the Constitution, saying that doing so “would be a horrible dangerous idea.”

Rather, he said the organization focuses on amendments that cover three subject areas: fiscal restraint, federal term limits, and the scope and jurisdiction of the federal government.

“The American public understands that we have to live within our means as individuals,” Meckler said. “The federal government needs to do the same.”

*Washington Constitutional Convention 1787, Junius Brutus Stearns [Public domain], via Wikimedia*

However, David Super, a professor of law at Georgetown University, worries that there’s nothing to stop a convention of states from going beyond the measures outlined by groups like Convention of States Action.

“I think it is something that looks scarier and scarier the closer you look at it,” Super said. “Open up the constitution in a convention, and all of the things that we take for granted become imperiled. The First Amendment becomes imperiled, the Second Amendment — many of our notions of equality and democracy become open for manipulation.”

Meckler believes that the federal courts have undue influence in dictating American policy.

“The federal government is involved in many areas that were never supposed to be in the constitution,” he said. “The constitution lists enumerated powers. The problem is that the courts have expanded interpretation of those powers beyond what founders intended.”

Meckler dismissed the idea that civil liberties expanded by the federal courts could be revoked if handed back to the states, in the event of a convention of states passing a constitutional amendment that reduced the influence of the judicial branch. He cited his Jewish identity as credence for being particularly sensitive of such threats.

“I’ve never heard anybody talk about [overturning these decisions] except for people on the left trying to scare,” he said. “This is fear-mongering by people who are scared of regular people having power.”

David Super disagrees.

“Both President Trump and Justice Thomas have suggested recently that politicians should have more ability to sue journalists over unfavorable stories,” he said. “That suggests there could be strong support for limiting press freedom in an Article V convention. On the other side, if a mass school shooting occurred while the convention was meeting, I can easily imagine it proposing to rewrite or eliminate the Second Amendment.”

According to Meckler, 14 of the needed 34 states have passed resolutions calling for a convention of states. His group hopes resolutions like the one passed in Spotsylvania will help push Virginia toward joining that number. But Super, and other legal scholars on both sides of the political aisle, see too many potential problems with the plan.

“The Constitution is our most fundamental source of liberties,” Super said. “Prudent people should not run such a risk.”

Donald Trump has made clear throughout his campaign and administration that he has no respect for the conventional norms of United States government. From his calamitous attempt, just after his inauguration, to institute a travel ban for several countries with predominantly Muslim populations to his equally uproarious attempt last summer to ban transgender people from the U.S. military by way of a tweet, he has continually pushed the limits of what the president can get away with.

The courts have stopped some of these attempts to rule by fiat (though the travel ban is very much in effect as of now). But court injunctions haven’t stopped Trump from trying… and his latest attempt might be his most blatantly dictatorial power grab yet.

In an interview with HBO news show Axios, scheduled to air next Sunday, Trump tells the show’s hosts that he’s interested in ending the Constitution’s guarantee of citizenship to anyone born within the United States. The interviewer tells Trump about how some legal scholars think this 14th Amendment policy can be ended by Executive Order, a legal directive that can be signed into law by the president without approval from Congress.

In response, Trump says he’s thinking about doing so. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” the president tells the Axios interviewer. “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”

“It’s in the process. It’ll happen — with an executive order,” Trump went on to say. He expressed contempt for the Constitution’s provision of citizenship by birthright. “We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It’s ridiculous. It’s ridiculous, and it has to end.”

In truth, the United States is one of 35 countries that allows for unrestricted citizenship by birth; others include Canada, Mexico, and Brazil. Significantly, all but three of these countries are in the Western Hemisphere; birthright citizenship doesn’t exist anywhere in Europe.

In the US, citizenship by birth is guranteed by the 14th Amendment, one of three amendments to the U.S. Constitution signed into law after the end of the Civil War. The 14th Amendment’s roots lie in one of the Supreme Court’s most infamous moments, the Dred Scott decision. In this 1857 ruling, the Court said that Dred Scott, a slave who’d been taken to free states on multiple occasions by his captors, was subject to the control of his slavemasters regardless of the laws in the state he entered. They based this ruling on the notion that slaves, regardless of where they were born, were not citizens of the United States, due to the fact of their enslavement.

The 14th Amendment’s Citizenship Clause reversed this decision. “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,” it read.

That “subject to the jurisdiction thereof” phrase has generated some controversy over the years, but according to constitutional law professor Suzanna Sherry, it’s pretty straightforward. “That means that they are subject to the laws of the United States; that they can, for example, be prosecuted for violating American law,” she told NPR.

In addition to being an attempt to make amends with former slaves, this clause also served to make immigrants feel more welcome in the US. In the late 19th century, immigration was vital to the United States workforce.

“The United States had experienced quite a bit of immigration, and immigration was viewed as a very good thing,” Sherry told NPR. “And so this was essentially putting out a welcome mat to immigrants by ensuring that their children born here would be citizens.”

These days, children of immigrants are seen quite differently. The growth of undocumented immigration to the United States from Latin American countries, which increased steadily throughout the late 90s and early 2000s, stoked right-wing fears — most of which were both unfounded and racist. By 2006, the term “anchor baby” had become ubiquitous on the right as a pejorative reference to US-born children of undocumented immigrants, who obtained citizenship at birth despite their parents coming to the country outside the legal immigration process.

The push to repeal the 14th Amendment’s Citizenship Clause and end citizenship by birth grew out of this (racist and hateful) right-wing movement, and as the US president with the most direct connection to that movement thus far, Trump is certainly in tune with it. However, his belief that an executive order alone would be enough to repeal a constitutional amendment is not supported by most scholars.

Earlier this year, retired Supreme Court Justice John Paul Stevens, who served on the Court from 1975 until 2010, published an op-ed in the New York Times, calling for a repeal of the Second Amendment and its provision of unrestricted access to firearms. Stevens felt that the Supreme Court’s decision in the 2008 District of Columbia v. Heller case was wrong, and should be overturned by way of amending the Constitution. “Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple,” Stevens wrote.

This kind of amendment is not unprecedented; the 18th Amendment, which prohibited manufacture or sale of alcohol in the United States, was later overturned by the 21st Amendment. However, it required not only a two-thirds majority vote in favor of passage by both houses of Congress, but passage by three-fourths of the country’s 50 states. The fact that this has only happened once in the 240-year history of the United States shows how difficult it is to accomplish.

If Stevens had seen an easier path to repealing the Second Amendment, surely he would have proposed it. As a former Supreme Court Justice himself, one would think he’s more aware than most of exactly what the Constitution allows and forbids.

Indeed, people who study this sort of constitutional law expect the courts to ultimately arbitrate the constitutionality of Trump’s planned executive order. On Twitter, Mark Krikorian, who serves as the Executive Director for the Center for Immigration Studies, predicted exactly this. “This will set up the court fight,” he tweeted. “The order will be enjoined, the case will eventually reach SCOTUS, which will then finally have to rule on the meaning of ‘subject to the jurisdiction’.”

It seems likely that the Supreme Court, complete with brand-new Trump appointee Brett Kavanaugh on board, will ultimately be the ones who decide whether Donald Trump should have line-item veto power over the Constitution of the United States. If the court were to rule in Trump’s favor, this would all but abolish, in real terms, the tripartite system of checks and balances we all learned about in middle-school social studies classes — paving the way for Trump’s joke(?) about being president for life to become a horrifying reality.

Let’s hope that doesn’t happen.

Would A ‘Convention Of States’ Be Good Or Bad For Virginia?

Trump Wants To End Citizenship By Birth. Can He?