Magazine article Reason

Trump vs. the Constitution: The Misguided Attack on Birthright Citizenship

Magazine article Reason

Trump vs. the Constitution: The Misguided Attack on Birthright Citizenship

Article excerpt

ON MARCH 27, 1866, President Andrew Johnson sent a message to Congress vetoing the landmark civil rights bill it had just passed. Among the provisions "which I cannot approve," Johnson wrote, was the first section, which stated, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

Not only would this grant of birthright citizenship make citizens out of "the entire race designated as blacks," Johnson protested, it would also make citizens out of "the Chinese of the Pacific States, Indians subject to taxation, [and] the people called Gipsies." He wouldn't sign it.

So the Republican-controlled 39th Congress passed the Civil Rights Act of 1866 over the president's veto. As Sen. Lyman Trumbull (R-Ill.), the bill's primary author, declared from the Senate floor, "the child of an Asiatic is just as much a citizen as the child of a European." Several months later, that same Republican Congress passed the legislation that became the 14th Amendment to the U.S. Constitution, which, among other things, declared, "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." Upon ratification in 1868, the 14th Amendment's Citizenship Clause enshrined the principle of birthright citizenship in the text of the Constitution. At the same time, it overturned the U.S. Supreme Court's notorious 1857 decision in Dred Scott v. Sandford, which held that persons of African descent could never be U.S. citizens. It was a magnificent achievement for the young Republican Party.

Today, birthright citizenship is again under fire, only this time the attacks are coming primarily from the party that first put the guarantee into place. In mid-August, GOP presidential frontrunner Donald Trump vowed in an immigration-policy white paper to "end birthright citizenship," which he claimed was the "biggest magnet for illegal immigration" (see "Anchor Babies Aweigh," page 24, for the dubious veracity of that assertion). Trump then said on Meet the Press that in addition to somehow preventing future children from enjoying 14th Amendment recognition, he would deport current U.S. citizens if their parents were illegal immigrants.

Where the reality TV star led, the other candidates soon followed, with Ben Carson, Ted Cruz, Mike Huckabee, Rand Paul, Rick Santorum, Bobby Jindal, and Scott Walker all coming out in favor of limiting the practice in some way. Jeb Bush, Marco Rubio, Carly Fiorina, Lindsey Graham, and Chris Christie were also critical. Among the top 14 contenders, only John Kasich and Rick Perry were unequivocal in their support for what the 14th Amendment grants, and the latter dropped out of the race in September.

"I don't think they have American citizenship," Trump told Fox News host Bill O'Reilly, in reference to the U.S.-born children of undocumented immigrants. "It's not going to hold up in court, it's going to have to be tested."

But if the courts follow the Constitution, Trump's test will surely fail. That's because the text and history of the 14th Amendment are clear: if a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

'No Rights Which the White Man Was Bound to Respect'

The story of birthright citizenship and the 14th Amendment begins back in 1833, when an army doctor named John Emerson purchased a slave named Dred Scott in St. Louis, Missouri. Over the following decade, Emerson's job took him and his new slave to various places around the country, including the free state of Illinois and the free territory that would later become the state of Wisconsin. In 1846, back in slave-state Missouri, Scott attempted to buy his freedom from Emerson's widow (the doctor had died in 1843). …

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