The purpose of the Fourteenth Amendment was to settle once and for all the question of racial citizenship, forever preventing the subjugation of one class of people by another. Donald Trump’s executive order purporting to end birthright citizenship is an attempt to reverse one outcome of the Civil War, by creating a permanent underclass of stateless people who have no rights they can invoke in their defense.
In 1856, in the infamous Dred Scott decision that declared that Black people could not be American citizens, Chief Justice Roger Taney wrote that as “a subordinate and inferior class of beings,” Black people had “no rights which the white man was bound to respect.” Yes, the Declaration of Independence had stated that “all men are created equal,” but “the enslaved African race were not intended to be included.”
Frederick Douglass, who argued that the Constitution did not sanction slavery, responded to the Taney decision by saying that one could find a defense of slavery in the Constitution only “by discrediting and casting away as worthless the most beneficent rules of legal interpretation; by disregarding the plain and common sense reading of the instrument itself; by showing that the Constitution does not mean what it says, and says what it does not mean, by assuming that the written Constitution is to be interpreted in the light of a secret and unwritten understanding of its framers, which understanding is declared to be in favor of slavery.” Sounds familiar.
Trump’s executive order similarly rewrites the Constitution by fiat, something the president simply does not have the authority to do. The order, which purports to exclude the U.S.-born children of unauthorized immigrants from citizenship, states that such children are not “subject to the jurisdiction” of the U.S. and therefore not included in the amendment’s language extending citizenship to “all persons born or naturalized in the United States.” This makes no sense on its own terms—as the legal scholar Amanda Frost wrote earlier this month, “Undocumented immigrants must follow all federal and state laws. When they violate criminal laws, they are jailed. If they park illegally, they are ticketed.” The ultraconservative Federal Judge James C. Ho observed in 2006 that “Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.”