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JOHN YOO: Supreme Court showdown exposes shaky case against birthright citizenship

9 117
yesterday

President Donald Trump pushed back on calls for Supreme Court Justices Samuel Alito and Clarence Thomas to step down, saying in an interview with Politico that both justices are "fantastic."

On Friday, the Supreme Court announced that it would hear challenges to President Donald Trump’s executive order to end birthright citizenship. The 14th Amendment automatically makes all babies born on American territory citizens. Trump’s effort to overturn the traditional reading of the constitutional text and history should not succeed.

Ratified in 1868, the 14th Amendment provided a constitutional definition of citizenship for the first time. It declares 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." In antebellum America, states granted citizenship: they all followed the British rule of jus soli (citizenship determined by place of birth) rather than the European rule of jus sanguinis (citizenship determined by parental lineage). As the 18th-century English jurist William Blackstone explained: "the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Upon independence, the American states incorporated the British rule into their own laws.

Congress did not draft the 14th Amendment to change this practice, but to affirm it in the face of the most grievous travesty in American constitutional history: slavery. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney concluded that slaves — even those born in the United States — could never become American citizens. According to Taney, the Founders believed that Black Americans could never become equal, even though the Constitution did not exclude them from citizenship nor prevent Congress or the states from protecting their rights.

SCOTUS TO REVIEW TRUMP EXECUTIVE ORDER ON BIRTHRIGHT CITIZENSHIP

The 14th Amendment directly overruled Dred Scott. It forever prevents the government from........

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