Mr. Trump takes aim at birthright citizenship. I think it is important to be clear about why we have it.
Birthright citizenship opens the Fourteenth Amendment. It opens the Amendment because it is crucial.
In the summer of 1866, before Michigan Senator Jacob M. Howard proposed the citizenship language on the Senate floor, the draft amendment already had a number of protections for the newly freed former slaves. But a Supreme Court decision, Dred Scott v. Sanford[i], which now lives in infamy, declared that slaves and former slaves were not and couldn’t be citizens; Dred Scott couldn’t be a citizen. Because they weren’t citizens, they couldn’t use the courts. Further, the Court invalidated the Missouri Compromise, which had defined the boundaries between free and slave states. It held that free states could not keep slavery out of their territory, and that Congress had no power to keep slavery out of the territories which were not yet states. That decision impacted freedom throughout every state in the country as it then existed, ignited northern anger and played a major role leading to the Civil War.
The original 1787 Constitution guaranteed citizens the privileges and immunities of citizens in each other’s states but didn’t define citizenship. Other provisions of the draft Fourteenth Amendment protected the right of all “persons” to due process and equal protection of the laws. But the privileges and immunities language was much broader and was understood to protect the rights of the former slaves to all the attributes of freedom, to live as free men and women with all the rights and privileges that implied.
So, citizenship is at the heart of the protections of the Fourteenth Amendment, at the heart of the Fourteenth Amendment’s protection of the newly freed African American former slaves and their descendants. They would have all the rights of citizens. But when Senator Howard spoke up, the draft of the Fourteenth Amendment still didn’t define citizens.
Senator Howard’s language filled that gap: “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.” That language now lives as the very first sentence of the Fourteenth Amendment.
The members of Congress were very explicit in their debates over the Amendment. Yes, it applied to everybody, even those toward whom there were the fiercest prejudices. It applied to Native Americans, and to people from China, making clear that in saying “All persons born or naturalized in the United States,” they meant all. Since 1868, when the Amendment was ratified, we would all be Americans.
It is fundamental for all of us that we are citizens regardless of whatever prejudices some Americans retain, regardless of the prejudices that people who came from England directed against everyone from the Irish to people from Southern or Eastern Europe, with a vocabulary I do no care to repeat. The Fourteenth Amendment’s citizenship clause is the lynchpin on which the whole Amendment depends, the provision that makes clear that we are all American. To reverse it would be at our own peril.
Since it is in the Constitution, thank heavens, no president has the right to suspend, overrule or refuse to enforce it.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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