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Schaller’s Law of Constitutional Amendment Politics

If you are not already familiar with Godwin’s Law, it refers to the phenomenon of extended if not heated arguments eventually devolving to the point where somebody compares an idea or person to Hitler, the Nazis, or Nazism. The corollary to the Law is that, by doing so, the person who brought the discussion to that point thereby lost the argument.

I’ve coined a few terms in my day. In the weeks leading up to the 2002 Maryland governor’s race, I forecast that the “New Big 5” counties of suburban Baltimore would be pivotal for Republican Bob Ehrlich, and that the so-called “Big 3” Democratic jurisdictions of Baltimore City, Prince Georges and Montgomery counties would be insufficient to pull Kathleen Kennedy Townsend across the finish line. And I suppose I’m the progenitor of the “non-southern strategy,” even if that term has failed to catch on as much as I had hoped. (The strategy itself worked.)

So herewith, my gambit to burnish my name into Wikipedia-dom forever with “Schaller’s Law.”

Schaller’s Law: In American politics, the eventual call for an amendment to the U.S. Constitution to solve a problem that some exasperated individual and/or group has deemed otherwise unsolvable absent a constitutional amendment.

Corollary 1: Calling for the amendment almost never results in its adoption, and may in fact undermine the policy agenda or reduce the political capital of amendment-seekers—particularly if an individual, group or groups repeatedly claim that amendments are the only or best way to solve public policy controversies.

You might have already guessed that I have proposed Schaller’s Law and its first corollary in response to the recent calls–including a soft endorsement by House minority John Boehner–to amend the 14th Amendment for the purpose of removing or at least clarifying the so-called “birthright citizenship” provision.

Now, let me clarify at the outset that, on the policy dispute itself, I’m not entirely sure how I feel about birthright citizenship: I can see merit in (some of) the arguments made by those who want to clarify its meaning or remove the provision altogether, as well as those–including Mike Huckabee–who want to leave the 14th Amendment alone. And although I’m sure there are some dishonest brokers who want to tinker with the 14th Amendment because of their expressed or latent xenophobia and even racism toward immigrants and their children, the fact is we do have very serious border problems, including the subset of problems that arise when illegal immigrants give birth to children within the physical borders of the United States.

I’ve written previously here at 538 about the dangers of attempting to solve policy disputes via constitutional amendment. I wrote my doctoral dissertation at UNC about Article V, the constitutional amendment process, and specifically the fascinating, if at times ugly, Prohibition-Repeal episode. (An episode which also had its own, rather unfortunate racial aspects: Some prohibitionists couched their arguments using scary language about the dangers of rape, violence and insurrection that non-whites, “black” or “red,” posed to decent society when they had access to alcohol.) In general, I believe it’s dangerous to use the Constitution other than to define the basic rights of citizens; the prescription and proscription of the powers and parameters of government; and the means for s/electing or removing the official who run that government.

I’m not a legal scholar, and so the legal question of whether there is a viable, non-amendment legal solution that Congress, the president and the courts can devise is something I’m unqualified to answer. But the issue of citizenship clearly falls within this constricted space: Defining who is a citizen rises to the level of constitutional resolution, as opposed to merely statutory or regulatory decision-making.

The political question, however, is whether the very act of calling for amending the 14th Amendment advances the cause of those who most worry about the negative impacts of children born to illegal immigrants, or of illegal immigration more generally. To use another coined term, I suppose calling for an amendment can expand the Overton window—that is, because amendments are a rare and, arguably, an extreme measure, advocating for them may compel politicians to take non-amendment action. And, indeed, note the coincidence that just yesterday Congress passed and President Obama signed a new Southwest Border Security Act that appropriates $600 million to ramp up security along the US-Mexico border. But there is also the cry-wolf effect of Corollary 1: A person or group that repeatedly calls for amendments for this and that can undermine their larger cause by appearing capricious about the proper use of the amendment process.

The children of immigrants are a small, but not insignificant part of the immigration policy debate. And maybe the language of the 14th Amendment–which by most accounts I’ve read was intended to constitutionalize the citizenship of freed slaves rather than children physically born in-country to illegal immigrants–does require further clarification by court rulings or, yes, even by a constitutional amendment. Like I said, the legal and constitutional aspects are above my pay grade.

But the political and strategic aspects are not. And the very fact of calling for an amendment suggests that some opponents of illegal immigration have reached the Schaller’s Law point of political exasperation.

UPDATE: Friends have pointed me to what conservative critics of the 14th Amendment movement are saying, including Erik Erikson of Red State, who calls it a “non-issue, will not happen, and is unnecessary anyway to deal with the issue”; Slate’s Dave Weigel, who seems to confirm the Overton view when he writes that the “restrictionist hope is not that the Constitution will be amended. It’s that Americans will start thinking about birthright citizenship; and the American Spectator’s Jim Antle who concludes that if “conservatives have a different set of priorities [on immigration or other issues], constitutional amendments with little chance of passage should be very low on that list.”