Primer: Birthright Citizenship

Understanding the Opening Clause of the Fourteenth Amendment

We take it for granted now, but following the Civil War and abolition, the establishment of birthright citizenship lay at the heart of the 14th Amendment.

The very first clause of the Amendment that remade America.

Which is why the reported Trump executive order to repeal it is a such strike against the Constitution, and against the nation as it has existed since the end of the Civil War.

Here’s a quick primer of the history and law that every American needs to know, drawing on the Eric Foner’s “The Second Founding.”

After the Civil War and abolition, in the early months of 1866, Congress debated the content of what would become the Fourteenth Amendment.

Many fundamental and practical issues had to be resolved, most pressing of which was the standing of newly freed slaves in the reconstituted nation: were they citizens, and what rights did they enjoy?

This was especially pressing because both violence and new “Black Codes” so quickly and brutally brought back many of the conditions of slavery from which they had just been freed.

Proposals flew back and forth, ultimately leading to the straightforward declaration of 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.”

This first sentence was “meant to ‘settle the great question of citizenship’ once and for all according to [one of its authors….[It] was ‘the law of the land already,’ in the Civil Rights Act. But of a course a law can be repealed.”

“We wanted to put this question…beyond the legislative power, beyond the reach of [those] who would pull the whole system by the roots and destroy it.”

As Foner explains, the inclusion of this sentence “constitutionalized the principle that virtually every person in the country is a citizen, regardless of race, national origin, or the political affiliation or legal status of one’s parents. Today, the United States stands almost alone among industrialized nations in this….”

The clause marked “an eloquent statement about the nature of American society, [and] a powerful force for assimilation of the children of immigrants…”

Importantly, the clause was a direct “repudiation of a long history of racism….”

“a dramatic repudiation of the powerful tradition of equating citizenship with whiteness, a doctrine built into the naturalization process from the outset and constitutionalized by the Supreme Court in Dred Scott. Free black communities had long lived in a kind of legal limbo, their status as Americans constantly open to questions….[It] also marked a radical change in the role of black women within American society. As slaves, they gave birth to property; now their children were citizens of the nation, rather than economic assets of white southerners.”

When it comes to the Constitutional order of our nation, a direct attack on the first clause of the Fourteen Amendment is as serious as it gets. To use that author’s words— it’s an attempt to “pull the whole system by the roots and destroy it.”

For a broader look at the conversations that led to the clause, and the other key elements (and weaknesses) of the Reconstruction Amendments, keep reading…

XIV Amendment

The abolition of slavery by way of the Thirteenth Amendment, ratified in 1865, opened immediate and enormous new questions for America’s democracy: