I’ve been writing “political” essays for over nine years. And, as a former government and history teacher, I’ve done a lot of thinking about the Fourteenth Amendment to the Constitution. In fact, I’ve written four essays directly on the point of who is an American citizen. So what else is there to say about the matter? Here’s my thoughts.
Born in the USA
Tomorrow, the United States Supreme Court will hear the case about Donald Trump’s executive order banning “birthright citizenship” (Constitution Center). The question is simple: should everyone born in the United States (or under the “flag” of the United States) be a “born” US citizen? The answer to that is in the “black letter” wording of the Fourteenth Amendment.
14th Amendment, Article 1, Section 1:
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.
That seems straight forward. But the Trump Administration argues that this section isn’t “clear” at all. In fact, they will try to convince the Court that, persons who are undocumented (the folks Trump loves to call “criminal-illegal” kind of like being “addled- demented”) and have a child born in the United States, are, NOT subject “to the jurisdiction thereof”. So their child, “Born in the USA” is not a citizen.
There’s a clear, common sense argument about that. While they may be undocumented, those folks are definitely “under the jurisdiction”. If they commit a crime, they are dragged into US Courts, punished under US law, and imprisoned in US jails. The MAGA folks know that’s true; they use it in their political ads all the time. Part of their “scare campaign” about the undocumented is the litany of rapes and murders committed by undocumented people. (Statistics show that violent crimes by the undocumented are far less per capita than by “regular” citizens” – House.gov).
John Elk
Another Trump argument hangs on a slim thread of documentation. They make reference to the 1884 Supreme Court decision, Elk v Wilkins ( 112 U.S. 94). Elk was a Native American, originally a member of the Winnebago Tribe of Nebraska. He “disassociated” himself from the tribe, and claimed that, since he was born in territory now owned by the United States, he had birthright citizenship. The Court ruled that since he was born a Winnebago, at the time recognized as a “foreign” nation, he did not have a birth right to US citizenship.
We could go into the horrible history of the United States government dealing with Native Americans. The US Government treated Native Tribes as foreign nations. They made treaties with them (almost all subsequently broken) and then waged war against them.
That includes in the 1880’s. The United States at the time was in open warfare in the Apache Wars, the California Indian War, and the Great Sioux War that then lead to the Ghost Dance Movement. In fact, the massacre of the Lakota tribe members at Wounded Knee didn’t occur until December of 1890, six years after the Elk decision.
So when John Elk appealed to the US Supreme Court, the government of the United States was at war with native tribes all over the West. Part of the legal “structure” that justified those wars of conquest was to view the tribes as “foreigners” in their own land. (That land was soon to be US Government land and sold to the highest bidder). In fact, it took until 1924 and the Snyder Act for all Native Americans to be considered citizens (NARF).
Waging War
The Trump Administration is appealing to this sordid history. They claim that if John Elk wasn’t considered a citizen, then a child born of undocumented migrants should not considered a citizen as well. And, the Supreme Court has made poor citizenship decisions in the past. The most obvious example is the Dred Scott Decision of 1857, when they ruled that black men, even if they were freed, were not eligible for citizenship. The first section of the Fourteenth Amendment was written to directly overrule that decision.
Undocumented migrants are not “waging war” against the United States. And they do not have “territory” within the boundaries of the US, or areas not “subject to the jurisdiction”. And for those just waiting to yell “Sanctuary Cities”; the cities that choose not to enforce immigration policies with their own police, remain under Federal jurisdiction. Sanctuary cities simply determine that immigration enforcement isn’t their responsibility. That’s just like the Secret Service enforcing laws against counterfeiting, not the local police.
Gilded Age
For the Court to accept the Trump Administration arguments and remove “birthright citizenship”, would require a vast legislative-like overreach. That’s especially true for a Court majority that prides itself on following the “original intent” of the authors of the Constitution, on in this case, of the 14th Amendment. The authors were men of their time. They included who they wanted, migrants among them, and they excluded who they didn’t want, including many Native Americans. The Supreme Court itself said so in a later case, United States v Wong Kim Ark, in 1898. In that case – on point – a person born in the United States of non-citizen Chinese parents, was held to be a citizen of the United States.
There’s no reason for the Court to compound the racism of the 1880’s. And while the Trump Administration might find common cause with the policies of the Gilded Age, let’s hope the Courts, and our Nation, moves beyond that. But, in this “Age of Trump”, anything is possible. You can’t even depend on the Supreme Court to follow their own precedents. Several of them are “men of their time” – the Gilded Age.
Other Essays on the Fourteenth
