The Birthright Con |
On Wednesday, the Supreme Court will hear oral argument in Trump v. Barbara, the case that will decide the fate of the birthright citizenship clause of the 14th Amendment.
On his first day back in office, President Trump issued an executive order that tried to redefine birthright citizenship to exclude the children of undocumented immigrants, despite the clear and expansive language of the amendment.
Backing Trump as he tries to rewrite the Constitution by executive fiat is much of the Republican Party and a collection of conservative legal scholars who rushed, in the wake of his decree, to try to give substance to the president’s thin, unpersuasive argument. Against Trump is the weight of Supreme Court precedent, historical consensus and the plain words of the clause itself.
There are few lines in the Constitution that are as straightforward as the citizenship clause of the 14th Amendment: “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.”
As the framers of the 14th understood it, this meant everyone except the children of most Native tribes, the children of ambassadors and any children produced on territory captured by an invading army. The explicit aim of the clause was to settle the question of American citizenship for good.
The Supreme Court would have its swing at the citizenship clause in 1898, after a string of cases whose results gutted much of the substance of the 14th Amendment, including Plessy v. Ferguson, the 1896 decision that flipped the equal protection clause on its head to allow Jim Crow segregation.
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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va.