You can't just pass a law to change the Constitution, can you?

[The Blue Flower]

If you could, the Equal Rights Amendment would already be law.

[exboyfil]

1. It is whatever the five in robes decide

I have always been amazed at the 2nd Amendment cases when I read it as applying to militia. In my mind that means organized militia. The Constitution has served us well, but it does have a great deal of ambiguities to it.

[TreasonousBastard]

2. You can, sorta, if you get the Supreme Court to agree with you.

[RichardRay]

4. Even with this Court...

...it would be a stretch. The Constitution is pretty unambiguous on this issue. No missing or gratuitous commas.

[jberryhill]

8. Oh, contraire

In fact, the entire crux of the minority position back in the day was the as-yet-not-fully-defined "under the jurisdiction thereof" part.

It has long been the minority position on this subject that persons who have not lawfully entered the country do not qualify under that clause.

Simply because past courts have agreed with limiting the scope of that exception to a very few instances, does not mean that the current or a future court could not read it more expansively.

[struggle4progress]

14. That's a weak objection. Nobody denies the US has jurisdiction over people who come here unlawfully:

otherwise, there would be no foundation for legal actions against such persons, such as detention or deportation

Persons in the US but not "under the jurisdiction thereof" do exist: they're diplomats, and the families of diplomats, who enjoy a certain immunity

[jberryhill]

15. Like it or not, that has been the minority position

Simply saying "that's how the court has interpreted that passage" is not a counter to the fact that it can be re-interpreted.

Yes, that's how it has been interpreted. However, it is not as if there was not a dissent to Wong Kim Ark, and a line of argument (which has never obtained a majority) to the contrary.

Shit happens when the balance on the court changes.

[struggle4progress]

16. Can you exhibit any substantial legal history of lawyers arguing in court

that persons, who are in the US illegally, are therefore not subject to US jurisdiction? or of any judges countenancing such claims?

[FBaggins]

10. Not quite so unambiguous

“Subject to the jurisdiction thereof” has been debated for some time.

I don’t think an executive order could get it done, but amendments frequently require implementing legislation, so Congress might be able to pass a law saying that children of legal residents qualify while children of diplomats/tourists/etc. don’t.

[Vinca]

3. I think someone has convinced Tiny the amendment has been incorrectly interpreted.

Since he's a moron I'm sure you could convince him the moon really is made of blue cheese.

[fescuerescue]

5. ERA isn't really a good example

Because you absolutely CAN pass an ERA equivalent at local and state levels. In fact many places have.

This is because the ERA language provides protections. It is additive.

What a law cannot do, is strip protections that are defined by the constitution.

[manor321]

6. They just want us talking about this to rile up Republicans before the election

And it is all we will talk about. This and the caravan, instead of issues that excite Democratic voters.

[jberryhill]

7. In some circumstances, yes

One of the ways that Constitutional interpretation manages to evolve is by (a) having a legislature pass a law, (b) having that law challenged in the courts, and (c) arriving at a new interpretation of whatever constitutional issue the law raised.

Everyone is fond of saying "This was decided in Wong Kim Ark". Well, yeah, and the principal of "separate but equal" was decided in Plessy v. Ferguson.

Different court, different outcomes. It was only a matter of a few years between "sodomy laws are constitutional" (Bowers v. Hardwick in 1986) and "sodomy laws are unconstitutional" (Lawrence v. Texas 2003).

For example, people don't seem to understand what happens if Roe v. Wade is overturned, nor do they understand how we reach that point in the first place. In order to overturn Roe v. Wade outright (instead of simply chipping away at it piecemeal as has been done thus far), then some state has to enact and enforce a ban on abortion, and someone has to challenge that in court.

In other words, yeah, sure, in order to get a re-do on some Constitutional principles which have been established by the court, then some government body somewhere has to do something which would violate that principle in order to generate the lawsuit that will lead to the issue getting to the court to begin with.

Over time, some minority Supreme Court opinions have been adopted by the majority, and vice versa. There's no sort of automatic mechanism that keeps these things in place, other than by avoiding electing presidents who are going to appoint radical justices to the Supreme Court.

[onenote]

9. Section 5 of the 14th Amendment:

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

This grant of authority to Congress arguably opens to door for the enactment of legislation that, in essence, interprets the language of the amendment, including the "and subject to the jurisdiction thereof" clause in Section 1 (the citizenship section). Any attempt to narrow the birthright citizenship right will be done by interpreting the scope of that clause so that it does not apply to a child whose parents are not in the US legally. That interpretation would appear to be inconsistent with prior statements by the Supreme Court, but it won't stop Trump and his gang from making the argument.

[mwooldri]

11. If Trump messes with birth certificates...

It won't nullify the 14th. But obstacles would be put in the way to make it hard for US citizens born in the USA to two non-citizens to get passports or other documents to prove their citizenship.

How I see the end run is this:

1. County courthouses will be not allowed to issue birth certificates to parents where both are non citizens. Parents will be instructed to register the birth with their countries embassy. This will force birth documents to be only registered by foreign entities for foreign parents. Foreign parents typically would register the birth with their countries embassy so that their children can have citizenship of that foreign country. For some countries I believe it might be required... other countries it isn't a requirement (e.g. UK citizens on a passport application can State they claim UK citizenship through their parents and provide documentation for this).

2. All levels of government are told not to recognize foreign issued birth certificates stating the person was born in the USA as a US citizen. This would mean that US citizens who only have a foreign issued birth record (and no county courthouse record) would effectively be treated as a foreign citizen.

Additionally, the State department can refuse to issue passports to US citizens who do not have at least one US citizen as their parent, and theoretically they can do this right now because I understand having a passport is a privilege and not a right.

None of this overturns the 14th amendment and does not IMO violate the constitution. It just puts a whole lot of new obstacles in the way of US citizens (without at least one parent as a US citizen at the time of birth) in getting access to their rights. Of course individual states could do an end-run on these new proposed laws, executive orders etc.

[Dan]

12. No, you cannot, not even the Orange (Tiny) can do that...

[Hassler]

13. Master Distractor is at it again. Don't take the bait.