*This post originally appeared on the Constitutional Accountability Center's Text & History Blog.
The arguments against the constitutional guarantee of birthright citizenship put forth by Donald Trump and other conservatives are, to borrow a descriptor oft-used by Trump himself, losers. Literally. Far from offering a bold new immigration reform plan that would "make America great again," Trump's plan recycles anti-immigrant ideas that were resoundingly defeated 150 years ago. In the process, he foolishly rejects values that are part of what makes America great in the first place.
Since its ratification in 1868, the Fourteenth Amendment has guaranteed that "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." Just a decade before this language was added to our Constitution, the Supreme Court held in Dred Scott v. Sandford that persons of African descent could not be citizens under the Constitution. Our nation fought a civil war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color, or parental origin.
When members of the Reconstruction Congress assembled to draft the birthright citizenship clause, they were writing against a backdrop of prejudice not only against African Americans, but also various immigrant communities, such as the Chinese in the West and Roma communities in the East. Much of the hostility against these 19th-century immigrants was similar to the resentment and distrust leveled at immigrants today: concern that immigrants would take away good jobs from U.S. citizens (while exhibiting a willingness to allow immigrants to take jobs perceived as undesirable); fear of waves of immigrants "invading" or overtaking existing American communities; and distrust of different cultures and languages.
For example, early in the 1866 debates, an opponent of birthright citizenship--Senator Edgar Cowan, often cited by modern opponents of birthright citizenship--objected to the citizenship provision by asking whether "it will not have the effect of naturalizing the children of the Chinese and Gypsies born in this country." Senator Lyman Trumbull, a key proponent of the citizenship clause, replied that it would, "undoubtedly," and made clear in the face of Cowan's xenophobic remarks that the child of such immigrants "is just as much a citizen as the child of a European."
In The Nation, Michelle Chen highlights the benefits of providing financial aid to incarcerated adults pursuing college-level education programs.
Becca Andrews at Mother Jones celebrates the decision by Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama to temporarily block a regulatory requirement that would have forced the state’s largest abortion clinic to close.
On FixGov, the blog of The Brookings Institution, Russell Wheeler writes about the large number of judicial vacancies, citing partisan differences between the White House and Senate as the root of the problem.
Rebecca Kaplan at CBS News discusses the plausibility and implications of ending birthright citizenship.
Attempts to undo the constitutional guarantee that those born in the United States are citizens are “flatly and incontrovertibly unconstitutional and completely at odds with our constitutional history,” Georgia State University law professor Neil Kinkopf tells ACSblog during a video interview.
Kinkopf traces the history of birthright citizenship in the United States, noting that the common law understanding was that all residents born here were citizens.
That understanding was upset in the worst decision in the history of the Supreme Court, Dred Scott, when Chief Justice Taney ruled that descendants of Africans cannot be citizens and cannot have rights that a white person is bound to respect.
It was the rejection of Dred Scott that led to the adoption of the Fourteenth Amendment and that led to the first sentence of the Fourteenth Amendment, which expressly puts into the Constitution birthright citizenship. It’s a fundamental commitment of our nation. It constitutes us as a people -- that we are not a country club, that everyone who’s born here is a citizen of the United States, and that our government cannot distinguish among us.
Despite rhetoric from some Tea Party leaders that says the Obama administration is running rough shod over the founding document, the country is not in “danger of flipping the Constitution on its head,” writes Richard Stengel in an extensive piece for Time.
Stengel, in “One Document, Under Siege," continues:
Their view [Tea Party faithful] of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: ‘The Constitution was written explicitly for one purpose – to restrain the federal government.’ Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.
If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.
Stengel’s article takes a look at some of the more high-profile constitutional debates, such as those focusing on Congress’s power to regulate commerce, in the context of the landmark health care reform law, and the 14th Amendment’s birthright citizenship clause.
In the concluding graphs, Stengel touches on the debate over constitutional interpretation, writing:
The Constitution is silent much of the time. And that’s a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.
Accompanying the article is a new Time poll, showing that 54 percent of respondents said they agreed that the government should interpret the Constitution “based on changes in society,” as opposed to interpreting “exactly what’s spelled out in the Constitution.” Forty-one percent of respondents said the government should “following exactly what’s spelled out in the Constitution ….”
Regarding the 14th Amendment’s clause, which states that all persons born in the U.S. are citizens, 62 percent of respondents said the provision should not be revised.
In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:
This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.
Is it remarkable that Pawlenty (pictured) supports appointing conservative justices to the Supreme Court? Of course not. But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution. After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.” That’s pretty hard to do if you don’t know what the Constitution says.
The Constitution’s 14th Amendmentprovides that “[a]ll 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.” This language plainly lays out a constitutional rule of citizenship at birth. No question.
Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right. But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens. Such a claim would be flat wrong as well.
In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil. (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue. Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)