by Brendan Beery
I thought I must have heard wrong today when it was reported that not one, but two, Republican presidential candidates – Donald Trump and that nasally, mouth-breathing clodpoll from Wisconsin called Scott Walker – are now advocating for the abolition of birthright citizenship. No doubt, they won’t be the last Republicans aboard this platform. Since birthright citizenship is a constitutional entitlement, it would take a constitutional amendment to change it. (Yes, let’s have this herd of Koch whores futzing around with the United States Constitution. What could possibly go wrong?)
The first sentence of the Fourteenth Amendment to the US Constitution 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.” The Fourteenth Amendment, adopted in 1868, was a response not only to the Civil War, but also to post-Civil-War abuses like the “Black Codes.” The principle aims of the Amendment were to ensure fairness and equality for former slaves, African Americans, and all those born or naturalized in the US.
The second sentence of the Amendment contains the nuts and bolts: “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.”
Since the second sentence gets to the core of the problems addressed by the Amendment (inequality and the deprivation of rights implicit in the concept of liberty), students of the Constitution often ask what the first sentence is all about: doesn’t it restate a mere truism?
The answer is no, it doesn’t. The first sentence was a rejection of one of the most notorious US Supreme Court opinions in history: Dred Scott. In Dred Scott, a former slave who lived in Missouri wanted to sue his former slave owner, who then lived in New York, in federal court. But the former slave (Scott) could only invoke the jurisdiction of the court if he was a citizen of a state (federal court jurisdiction extends to suits involving claims by the citizen of one state against a citizen of another state).
In Dred Scott, the Supreme Court ruled that Scott could not invoke the jurisdiction of a federal court because, even though he lived in Missouri, he was not a citizen of Missouri (or any state) because – get this – as a former slave, he was chattel. Chattel is the legalese word meaning personal property. The most debasing thing a court could possibly say about a human being would be that that human being was mere chattel.
The drafters of the Fourteenth Amendment wanted to get something off their collective chest before getting to the “nuts and bolts”: they wanted to smack down the US Supreme Court, textually overrule Dred Scott, and establish for all time that any human being born in the US must be afforded dignity, the freedom to exercise fundamental liberties, and equality under the law. No longer would any government be allowed to debase or abuse a person whose birthright was something as basic as mere humanity.
Birthright citizenship was the enlightened response to those whose agenda was to target minority populations with animus and vitriol. In its commitment to decency and the restraint of majoritarian mischief, it was – and is – the noblest of any provision in our governing charter.
And this is what Republicans want to undo.