Abstract

Excerpted From: Sandra L. Rierson, From Dred Scott to Anchor Babies: White Supremacy and the Contemporary Assault on Birthright Citizenship, 38 Georgetown Immigration Law Journal 1 (Fall, 2023)(489 Footnotes) (Full Document)

The guarantee of “birthright citizenship” derives from the plain language of the Fourteenth Amendment to the United States Constitution: “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.” The Fourteenth Amendment constitutes the cornerstone of an expansive and inclusive definition of American citizenship that enabled the nation to rise from the ashes of the Civil War and begin its journey towards equality under the law. That journey has been undermined from the start by a pervasive national belief in white supremacy, a poison that girded the institution of chattel slavery, fueled the Civil War, torpedoed Reconstruction, and continues to deprive non-white Americans of their civil and human rights. Even today, white supremacy threatens the fundamental tenets of American democracy. Its influence is evident in the increasingly “mainstream” voices that have challenged and belittled both the literal meaning and the egalitarian intent of the birthright citizenship clause of the Fourteenth Amendment. Unrestricted birthright citizenship is under attack in America and must be preserved to protect the nation's future as a pluralistic, liberal democracy.

The Fourteenth Amendment's grant of birthright citizenship represented a radical departure from the racialized construct of citizenship that predated it. The “whites-only” vision of the American polity was explicated by the Supreme Court in Dred Scott v. Sandford, one of its most infamous decisions. The Court held that, because of their race, Black people could never be citizens of this country, regardless of whether they were, or had ever been, enslaved. In essence - and contrary to tradition - the Supreme Court imposed a test of inherited citizenship, or jus sanguinis, in America. Due to the existence of chattel slavery, the Court reasoned, all Black people in the United States of America failed this test since all of them (according to Chief Justice Roger B. Taney) were either enslaved or descended from enslaved people. The Fourteenth Amendment rejected and superseded Dred Scott, directing that citizenship extends to “all persons born or naturalized in the United States,” regardless of race, national origin, or any other innate characteristic. The congressmen who cemented this expanded definition of citizenship in the Constitution understood and embraced its radical potential to redefine membership in the American polity.

For decades, this inclusive definition of American citizenship was largely, although not universally, accepted across the American political spectrum. However, attacks on unconditional birthright citizenship that once emanated from the far right have become routine political discourse. White nationalist groups were some of the earliest contemporary adopters of the idea that the Fourteenth Amendment either does not or should not grant citizenship to individuals born in the United States to undocumented parent(s). Their ideology, however, is not new and has deep roots in nineteenth-century hostility to immigrants, especially the Chinese. The election of President Donald Trump in 2016 brought these beliefs further into the mainstream of American politics in the modern era, as he repeatedly derided the concept of birthright citizenship and proclaimed it contrary to the national interest. Although Trump is no longer in office, the ideas he espoused did not begin or end with him, and he is seeking the Presidency again. Politicians and pundits disseminate white nationalist dogma on the evening news, often under a sanitized version of “white replacement theory.” Beneath the twenty-first century packaging, the message is reminiscent of Dred Scott: “true” Americans are, by definition, white people.

Birthright citizenship constitutes a fundamental pillar of American democracy. Eliminating it for children with undocumented parent(s) would restrict and redefine American citizenship, potentially stripping citizenship from millions of people who are descended from immigrants, most of whom are nonwhite. This constriction of citizenship would yield disastrous consequences, not just for the groups targeted by it, but for America as a whole. The United States cannot and should not forget its history, which is rooted in white supremacy and the institutions of chattel slavery and settler colonialism that it enabled. The Fourteenth Amendment did not negate white supremacy but did bring the nation closer to realizing its stated ideal of equality under the law. This country cannot permit the forces of racism and nativism to turn back the clock.

Part I of this article examines the historical foundations of the Fourteenth Amendment's birthright citizenship clause, beginning with the Supreme Court case it superseded: Dred Scott. Part I explains that the drafters of the Fourteenth Amendment understood and embraced its radical potential to reshape the American polity. The Supreme Court, in interpreting the amendment, understood and accepted that intent, even though it did so at a time of widespread racism and nativism, especially against Chinese immigrants. Part II of this article examines the modern assault on the Fourteenth Amendment's guarantee of unconditional birthright citizenship. The racial motivations underlying this movement cannot be ignored. Legislation and executive action have been proposed to end birthright citizenship, either of which may be tested in the most conservative Supreme Court in more than a century. However, the ultimate threat to birthright citizenship may lie in an Article V convention that could rewrite the Constitution itself. Part III explores the potential demographic and economic impacts of ending birthright citizenship in America for children with undocumented parent(s). Immigration does not make America “poorer,” as some have claimed, but eliminating birthright citizenship based on the immigration status of a child's parent(s), would. More importantly, the revocation of unrestricted birthright citizenship would pose an existential threat to American democracy itself.

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The societal instinct to limit the rights of citizenship to “legacy” Americans - “my own people, the people of my own blood and lineage, people of the same religion, people of the same beliefs and traditions” - is as old as America itself. Likewise, the political benefit of “riling the base” by channeling and escalating fear of a racial “other” in response to an economic crisis, shifting demographics, or other forms of social upheaval, is not new. When Senator John Conness observed that it was “very good capital in an electioneering campaign to declaim against the Chinese,” he was right. Conness' refusal to vilify the Chinese subsequently led to the end of his political career. However, he was also correct in identifying the most salient threat to the United States as an internal one. In his era, “[i]t was an invasion of rebels” - not “Gypsies” or any other outsider - that threatened the existence of the United States. Those rebels were fueled by the same core beliefs that animate white Christian nationalists and advocates of white replacement theory today - the same beliefs that drove a mob to storm the U.S. Capitol on January 6, 2021, hoisting crosses, swastikas, and Confederate flags in the halls of Congress.

Today, as in the nineteenth century, the Fourteenth Amendment “is intended to guard against and to prevent the recurrence of” such attacks. Twisting the words and meaning of the Fourteenth Amendment to eliminate unconditional birthright citizenship - or altering the Fourteenth Amendment itself - would effectively reinvigorate a racialized notion of American citizenship that would undermine and demean American democracy itself.

Professor, Thomas Jefferson School of Law.