Conservative legal thought leaders typically argue that the United States Constitution is a “dead” document. To them, its interpretation should not change with the times to reflect evolving values and updated understandings of the world. Instead, an originalist judicial philosophy calls for interpreters to place themselves in the shoes of the framers. In some cases, this is a task so challenging, it borders on ludicrous. What would George Washington think about Facebook? Or Alexander Hamilton about 3-D-printed assault rifles? Other cases, however, are simple: It is easy to discern what legislators meant by the 14th Amendment.
One hundred and fifty years ago—three years after the end of the Civil War—the 14th Amendment was ratified and became part of the Constitution. This amendment was necessary in order to define the legal status of black people in this country after slavery. For the entire prior history of the United States, black people had “no rights which the white man was bound to respect,” as pronounced by the Supreme Court in Dred Scott v. Sandford (1857). Millions of black people were born in America but had no rights as Americans. The 14th Amendment changed that and expanded our imperfect democratic project by granting not just legal personhood but also citizenship to formerly enslaved people. The 14th Amendment begins, “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.” To people like Vice President Mike Pence who claim to support originalism and pledge fealty to the Constitution, the purpose and meaning of the 14th Amendment should be quite clear. The 14th Amendment is a radical act that disentangled citizenship from whiteness, and extended legal rights to black people—and later, other people of color—by making citizens out of noncitizens and their children.
Constitutional originalists should, therefore, be disgusted by Donald Trump’s claim that he will eliminate birthright citizenship by executive order—disgusted morally, as it is quite literally a white nationalist talking point, and intellectually, as it flies in the face of the purpose and plain meaning of the 14th Amendment. In addition to the fact that an amendment—not an executive order—is required to alter the Constitution, originalists should recognize that the 14th Amendment is an anti-racist law designed to protect against legal chicanery like the president’s plan to weaponize xenophobia with an executive order.
Instead, Republicans have offered their support. South Carolina Senator Lindsey Graham praised Trump for his willingness to take on birthright citizenship—a constitutional guarantee that Graham called an “absurd policy.” Senate Judiciary Chairman Chuck Grassley of Iowa falsely claimed that there is a “debate”among legal scholars about whether the right to birthright citizenship extends to the children of undocumented immigrants. (On the contrary, scholars overwhelmingly agree that children born in the United States are citizens of the United States, with the limited exception of the children of foreign diplomats.)
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Grassley and others argue that the clause “subject to the jurisdiction of” excludes the children of noncitizens from birthright citizenship, but this scenario was in fact anticipated by the writers of the 14th Amendment. Prior to 1866, black people in America were not citizens and had no protection under law. Notably, in Dred Scott, the Supreme Court relied on an originalist interpretation of the Constitution, reviewing the intent of the nation’s slave-owning founders, and held that all black people and their children were to be permanently excluded from citizenship—regardless of whether they were enslaved or had become free. To be clear: Not only were black people noncitizens, their descendants were to be a perpetual underclass. The 14th Amendment fully intended to remedy this harm and confer citizenship to black people, and all future generations. This meant, by definition, granting citizenship to the children of noncitizens. Furthermore, the exclusion of noncitizens from the protections of a specific law or amendment does not make sense as a practical matter. Imagine people being charged with crimes and arguing that they are only unauthorized residents of the country, and therefore not subject to its laws. In no other case would Republicans contend that this country’s laws do not apply simply because someone is not a lawful resident.
Ensconced in the comfort of their hypocrisy, Republicans have tried to order from the Constitution à la carte: Iowa’s vocally racist US Representative Steve King (and 48 Republican cosponsors) introduced a bill that would establish that native-born children of noncitizen parents are not entitled to citizenship, but those born to at least one citizen are. The 14th Amendment makes no such distinction. And yet, HR 140 would amend the Immigration and Nationality Act to consider a person born in the United States “subject to the jurisdiction” of the United States for citizenship purposes only if at least one parent is a citizen, lawful permanent resident, or member of the US Armed Forces. Here, King and his collaborators are engaging in behavior originalists supposedly hate—extrapolating from the 14th Amendment—to meet their nativist needs.
Like with HR 140, Trump’s commitment to ending birthright citizenship, and the ensuing support from the Republican establishment, betrays the GOP’s stated allegiance to originalism. There is no way to reconcile abandoning this core component of the 14th Amendment with any claim of fidelity to original intent. It is a twisted logic that reveals the entirety of the doctrine of originalism to be a scam.
Republicans value original intent only as far as it serves as a link to the framers and their slave-era beliefs that defined people of color by the ways they could be exploited and discarded. Before the 1860s, the Constitution reflected a limited concept of rights and who deserved them. Republicans’ reverence for the Constitution evaporates when confronted with the Reconstruction amendments, as the 13th, 14th, and 15th Amendments set out to extend constitutional rights to the entire population, including the formerly enslaved and their descendants. It’s white supremacy—not originalism—that is the true guiding principle of the modern Republican Party.
Eliminating birthright citizenship would render hundreds of thousands of people of color stateless, making them refugees in their own country. It would also open the door to mass deportation, incarceration, and the expansion of prison slavery. Chipping away at the 14th Amendment functions to solidify America as the exclusive domain of the white and wealthy. This is, of course, the president’s, the originalists’—the white supremacists’—goal.
The 14th Amendment was a profound piece of antidiscrimination lawmaking. One hundred and fifty years after its ratification, the UniteS should be working to fulfill its promise, not break it. Republicans, worried about demographic trends, may cloak their anxiety in legal finery, but that makes it no less racist. Rather than cannibalize the 14th Amendment, it is of utmost importance to build on its legacy of opposing racism by opposing the intellectually and morally bankrupt whose judicial philosophy is nothing more than a cover for brazen white supremacy.
