Senator Graham is considering proposing a constitutional amendment to end birthright citizenship. Conservative scholars have been reaching for a reinterpretation of the Constitution to accomplish this, but their argument is thin and that so-called conservatives are considering an amendment is an admission that their attempts to reinterpret the Constitution is weak. The first section of the 14th Amendment 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Their argument rests on the part which says “subject to the jurisdiction thereof”. They claim that jurisdiction requires an affirmative relationship by both parties, meaning both parties have to claim loyalty to the other for the relationship to be valid. Since the government does not affirm this relationship by virtue of the person’s status as undocumented, they do not fall within the definition of being “subject to the jurisdiction”. Garret Epps writes on the the legislative history and interpretation of this clause. More on the subject here.
As a side note, it is amazing that so-called conservatives who are making such arguments are doing exactly what they are constantly griping about progressives, reinterpreting the text of the law. Here we have an established law based on centuries of English law and they want to simply throw it out the window because there is political advantage to it. This is radicalism, pure and simple. Nothing can be more unconservative than this.