Constitution at Risk?

Spectator

By Stephen Tuttle | Jan. 25, 2025

It would seem our Constitution is somewhat at risk as our new president, and at least some of his supporters, don’t care for parts they find inconvenient. The president has actually said he believes he can find ways to circumvent some sections through Executive Orders and other parts he might simply ignore.

He is not alone in his disappointment with a document intentionally created to impede the totalitarian instincts of politicians always searching for more power. And it’s not just conservatives; some on the left have their own wish list of desired constitutional changes. But our Founders, in their wisdom and foresight, made it hard to change the document they created, which is why it has only been amended 27 times in our history.

The president says he intends to end so-called birthright citizenship guaranteed in the Fourteenth Amendment, and he thinks our freedom of speech goes too far and it should be easier to sue for libel or defamation.

But the Fourteenth Amendment is crystal clear on citizenship. Section 1 says, “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.” If you're born here, you’re an American citizen. Our Supreme Court (SCOTUS) first upheld this in an 1898 decision, U.S. v. Wong Kim Ark, and has reaffirmed it multiple times since.

The notion there are millions of pregnant women wandering into the country, or coming here intending to become pregnant, is not borne out by the facts. According to data collected by Pew Research, the number one reason people enter the country illegally is to find work. In some cases, American employers have made that easy by actually recruiting south of the border. Many companies recruit legal immigrants through various work visa programs, but at least two, Atrium Companies and Advanced Containment Systems, Inc, have admitted recruiting and hiring illegal immigrants. They are likely not alone.

Immigrants also come here because conditions in their home country are so dangerous their family is at risk, or they already have family here so they take the chance to make the crossing. Having an American baby does not make the top five reasons.

Before we send these folks packing, we might also consider what they do once here. Do we want the fruits and vegetables they harvest, the poultry and beef they process, the houses they frame, roof and paint, the yards they landscape?

(They don’t commit much crime, either, though when they do it is certainly publicized. According to the FBI, illegal immigrants are the cohort least likely to commit acts of violence against legal citizens; they are much more likely to offend against each other.)

Maybe hacking away at the First Amendment would be a little easier since federal courts, including SCOTUS, seem to be backing away from the notion our freedom of speech is mostly absolute. It says clearly Congress should “... make no law... abridging the freedom of speech, or of the press...” But the president thinks it should be easier to sue individuals and/or the media for comments or commentary about him he doesn’t like.

The bar is high for defamation, libel, and slander. Authors/speakers have to know what they were saying or writing is untrue and that there is malicious intent. This threshold becomes even more difficult to cross when the subject is a public figure.

Fortunately, we do have a good recent example of defamation. When Donald J. Trump was found civilly responsible for sexually abusing E. Jean Carroll, he continued saying she was lying, among other insults. But a court had found her comments to be truthful, so Trump’s insults were dishonest and defamatory.

Some Trump fans think they have already found a way around the Twenty-Second Amendment that is also crystal clear. Section 1 starts, “No person shall be elected to the office of the President more than twice...” The end.

Not to be outdone, those on the left would like to take a Quixotic whack at the Second Amendment, though repealing or altering it would seem a bridge way too far, especially since SCOTUS must believe we’re all part of a well-regulated militia. Those efforts might well end up in the Futility Hall of Fame, if one exists.

Both sides have issues with the Electoral College, but neither is likely to actually do something. Interestingly, the Constitution mentions “electors” in both Article II and the Twelfth Amendment, but never the words “electoral college.”

The good news is there will be no constitutional amendments any time soon or, maybe, any time at all. It would require the support of two-thirds of both the House and Senate and then approval by three-fourths of the states. Agreement from 67 senators, 291 house members, and 38 states at roughly the same time? Nope.