A general principle of constitutional law is that later-in-time amendments modify earlier provisions. The classic example is the 3/5 Clause. The 14th Amendment nullified that provision, notwithstanding Dred Scott (Update: As Ed Whelan points out, the 13th Amendment eradicated the 3/5 clause, as there were no longer “other persons” to count once slavery was eradicated. Likewise, the express terms of section 2 of the 14th Amendment nullify the 3/5 clause). The 11th Amendment removed grants of jurisdiction in Article III where a state could be sued by a foreign citizen. The 12th Amendment modified how the President is selected. The 14th Amendment abrogated state sovereign immunity protected by the 10th Amendment. The 21st Amendment (thankfully) repealed prohibition under the 18th Amendment. And so on. No court cases were needed to invalidate these earlier provisions. The Court seems to have recognized that the clauses were struck by operation of Article V.

Of late, the “Natural Born Citizen” clause has been in the news. (Let’s put aside for the moment the statutory arguments concerning Ted Cruz.). The clause on its face is a classification on the basis of nationality at birth. Only those people who were born in the United States can run for President. This seems incompatible with the 14th Amendment.

Imagine if Congress passed a statute that limited a government job to a person born in America–no babies from Europeans or Africans or Asians could apply. Only those people born in the United States would eligible. Naturalized citizens need not apply. I think everyone would agree that law would be unconstitutional under modern Equal Protection caselaw. This suspect classification (national origin, and specifically the nationality at birth) would be subject to strict scrutiny, and the statute would be invalidated.

So why would a similar provision in the Constitution of 1789 escape the 14th Amendment? The mere fact that the “Natural Born Citizen” clause is in the Constitution does not make it immutable. The 14th Amendment already jettisoned the 3/5 clause. Why not this other discriminatory provision?

One rejoinder is that the Constitution also limits the qualifications for the Senate and the House to those who have been citizens for a number of years. Under our modern equal protection case law, classifications on citizenship are tolerated in certain contexts–especially in cases of governmental service. Also, by virtue of the 14th Amendment, a person can become a citizen. In stark contrast, a person can never change his nationality at birth. That is the essence of an immutable characteristic. Rather, the candidate is judged entirely on the basis of his nationality. An immigrant is permanently disqualified from holding the office of the Presidency, while an immigrant who is naturalized could run for the House or Senate in a number of years.

I don’t see how the “Natural Born Citizen Clause” survived the 14th Amendment.

Update: Ed Whelan, who calls my idea “silly,” makes an important point:

@JoshMBlackman If there’s conflict btwn express const provision and case law, that means case law is wrong. (But I don’t concede conflict.)

— Ed Whelan (@EdWhelanEPPC) March 24, 2015

My argument is premised on case law interpreting the text of the Constitution–not the original meaning of the 14th Amendment. The 14th Amendment, on its face, doesn’t impose bans on classifications based on nationality, or gender, or race, or anything for that matter. It only speaks of “equal protection,” whatever that is. For that matter, the entire notion of “strict scrutiny” is a judicial creation. Ed chalks all of this up to “living constitutionalism” and contends that caselaw cannot render an express provision of the Constitution void. Ed writes that this means the caselaw is wrong.

This seems another leg in the ongoing debate about judicial supremacy and departmentalism, which I hadn’t meant to address in this post, but I suppose it is inevitable. If we accept that the Supreme Court is the final (but not sole) expositor of the Constitution, then we accept that “strict scrutiny” and “suspect classifications” are the meaning of the 14th Amendment. In this limited sense, the “natural born citizen” clause is incompatible with how the Court has interpreted the 14th Amendment. But this is not the only way to read the 14th Amendment. If we reject this view, then there’s no problem.

A simpler answer is that we can argue that earlier provisions of the Constitution can only be voided by a clear, explicit textual provision–such as the 11th or 21st Amendment. I’ll need to give more thought to this, as I (much to Ed’s chagrin) take modern equal protection as a given. But it’s true that provisions should not be repealed by implication (as Eric Segall noted).

Update 2: Christopher Green points out that in Knauer v. United States (1946), the Court per Justice Douglas pointed out that the “Natural Born Citizen” clause is an exception to the general rule:

Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Luria v. United States,231 U. S. 9, 231 U. S. 22. There are other exceptions of a limited character. [Footnote 3] But it is plain that citizenship obtained through naturalization carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws, including the very Charter of our Government. Great tolerance and caution are necessary lest good faith exercise of the rights of citizenship be turned against the naturalized citizen and be used to deprive him of the cherished status. Ill-tempered expressions, extreme views, even the promotion of ideas which run counter to our American ideals, are not to be given disloyal connotations in absence of solid, convincing evidence that that is their significance. Any other course would run counter to our traditions, and make denaturalization proceedings the ready instrument for political persecutions.