Birthright Citizenship Is a Sacred Guarantee

The attempt to end birthright citizenship in the United States is an attempt to reverse history, to push our nation back, way back, before the Dred Scott decision of 1857 and the secession crisis that soon delivered the nation into the Civil War. Calling this action “unconstitutional” is utterly inadequate; the maneuver is the soiling of sacred text with profane lies.

Birthright citizenship is a shield of protection to anyone born in this country, as close to a national self-definition as we have; it is our legal DNA. Section 1 of the Fourteenth Amendment should be emblazoned on small laminated cards and carried in every American’s pocket. The language is amply clear:

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 is as fundamental to the Constitution as any other provision, perhaps even more important to the survival and growth of our pluralistic republic than the First Amendment, which protects free speech, free press, the right of assembly, and the right to petition the government. It is as inherent to constitutional function as federalism itself.

[Read: The Attack on Birthright Citizenship Is a Big Test for the Constitution]

The Trump administration now scoffs at this history, purporting to end this guarantee with an executive order signed on Donald Trump’s first day back in the Oval Office and tragically titled, in a fantastic act of Orwellian doublespeak, “Protecting the Meaning and Value of American Citizenship.” The administration makes a phony originalist argument based on the claim that the Fourteenth Amendment’s guarantee extended only to the freedmen and their descendants. Quite the contrary, the amendment’s authors explicitly envisioned the immigrant population and its descendants as part of their plan. Congressman John Bingham, Section 1’s author, defended the amendment by drawing on the authority of the Constitution’s Framers, who had “invited the workers and builders whose honest toil clothes and shelters nations,” and who hailed from “every civilized nationality” to become “citizens of the Republic.” This is why, in blocking Trump’s order last week, the Federal District Court Judge John C. Coughenour said without caveat: “This is a blatantly unconstitutional order.”

Section 1’s origins lie deep in our past. It is rooted in the petitions of African Americans during and after the American Revolution that demanded freedom and natural rights for their service to the patriot cause. It stems from many ideas and strategies of the British and American abolition movements. It echoes Thomas Jefferson’s inclusion of equality among “these truths” in the Declaration of Independence and Abraham Lincoln’s use of the same word in the Gettysburg Address, as well as his full-throated embrace of immigration well before the Civil War. Its most direct and powerful harbinger is the emancipation of nearly 4 million slaves in the midst of the war. Without that greatest transformation in American history, there would be no Fourteenth Amendment—no birthright citizenship and no equal-protection clause either, a codification just as sacred.  

Most profound, birthright citizenship is rooted in the blood of more than 700,000 Americans who died in the Civil War, a catastrophe that made possible what most historians now call the “second founding” of America. The rebirth harkened in the Fourteenth Amendment is the core of this phrase’s meaning. The Trump administration’s desire to obliterate birthright citizenship is part of a larger quest to undo most of this egalitarian tradition, to shift American history into a kind of permanent reverse gear back to an age of secure constitutional white supremacy.

[Read: The Coming Assault on Birthright Citizenship]

One cannot overstate the gravity of Trump’s proposed action, nor the historical ignorance on which it stands. The original Republicans who crafted birthright citizenship into the amendment were doing nothing less than harvesting the greatest results of the Civil War, making good on the promise of freedom for millions of any creed, color, or national origin at the time and for all time to come. Section 1 explained to the world what that war had meant. To erase any part of it now is to tarnish the legacy of William McKinley, Trump’s new favorite president, who fought in the Battle of Antietam. The Union victory there is what prompted the Emancipation Proclamation.

For Bingham, a deeply Christian abolitionist Republican from Ohio, this debate went back at least to the 1850s crises over the expansion of slavery. In 1858 he said, “Every man knows that under our free institutions, every person born of free parents within the jurisdiction of the United States … is a citizen of the United States.” Bingham, of course, overestimated such consensus, because Chief Justice Roger B. Taney in Dred Scott v. Sandford had ruled for a 7–2 majority of the Supreme Court the previous year that Black people possessed “no rights” whatsoever under American law. One of the grand purposes of the Fourteenth Amendment was to relegate the Dred Scott decision to history.

By the winter of 1866, as Congress debated the content of an amendment, it faced many overwhelming obstacles, especially bone-level, historical racism and the doctrine of federalism that fundamentally protected states’ rights. Congress had just fought an all-out war to restore the Confederate states to the Union and to end slavery with an overwhelming use of federal power.

But the Republicans, despite fierce debates, were confident. “I can hardly believe,” wrote Thaddeus Stevens, the radical floor manager for his party, “that any person can be found who will not admit that every one of these proposals is just.” They knew exactly what they intended to achieve. Bingham defended the amendment as protection of the “in-born rights of every person.” Stevens thought they had to “fix the foundations of the government on principles of eternal justice.” Senator Lyman Trumbull saw them advancing principles “which the great Author of all has implanted in every human breast.” They believed that they were enacting justice and morality, not only for freed slaves but for the country’s immigrant future, a fact they deeply understood because they had lived through the recent waves of Irish and German immigration.

[Read: The Real Origins of Birthright Citizenship]

As for states’ rights, Bingham had a constant answer. For “generations to come,” he announced, he sought to “arm Congress … with the power to enforce the Bill of Rights as it stands in the Constitution … in the states.” In the states, by federal power.

In floor debates, Bingham spoke with great eloquence about the purposes of the amendment. “The day of the freedman’s deliverance has come,” he declared, “not without suffering, not without sorrow, not without martyrdom, not without broken altars and broken hearts.” But now he saw potential days of glory, not only for ex-slaves but for the immigrant. The Constitution could now “provide that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless … shall be deprived of life or liberty or property without due process of law.” Above everything, “all persons born” here were forever citizens.  

Trump and his allies have picked a fight over this crucial provision in the Constitution. Americans have to engage the fight, in the courts and with every mode of persuasion. Trump and his allies’ vision is an egregious abuse of real history and the new Constitution it forged in the 1860s. If they succeed, then Grant has surrendered to Lee at Appomattox.