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 text of the Fourteenth Amendment is not ambiguous. If you're born here, and you're not the child of a diplomat, you're a citizen.
Can you be arrested and prosecuted by the government of the United States? Yes? Well, then, congratulations! You're subject to the jurisdiction thereof.
There are lots of bits and pieces of the constitution that are interpretationally weird and vexing. The first clause of the first section of the Fourteenth Amendment is not among them.
Seriously. Don't believe them when they tell you this is a complicated interpretive issue, or that there's a secret 19th century meaning to the text you don't know about. It's not true. The text says what it says. Really. Want to know what it says? You can just ... read it.
The Supreme Court and the Executive have chosen to read portions of the Fourteenth Amendment out of existence to oppress people in the past. They may do it again. But it's an exercise of raw power, not constitutional interpretation.
Was then. Is now.
Was then. Is now.
In all likelihood, this is just guff and bluster, at least for now. To do this—and to do it by executive order—would be a huge thing with all sorts of unpredictable consequences. But the threat is real.
This is why Trump wants a prostrate, subservient Supreme Court. Does he have that Court yet? It's not clear. We don't know. He doesn't know. It's an open question.
And so we fight. And part of how we fight is insisting that the truth is the truth, that the Constitution says what it clearly, obviously, unambiguously says. That's not enough, on its own—it's never been enough, on its own—but it's not nothing, either.
And we're not just talking about any randomly chosen snippet of the constitution here. We're talking about the Fourteenth Amendment, the most crucial, explicit protection we have for our civil rights and liberties.
The passage of the Fourteeenth Amendment was an essential turning point in American history. If we're discussing the Fourteenth, let's discuss why it exists, and why it says what it says.
In order to fully understand the Fourteenth Amendment, you need to know about Dred Scott, and his struggle to gain his emancipation before the Civil War.
Dred Scott was born into slavery, but when he was in his mid-thirties he was brought by his owner to live for an extended period of time in free territory, where slavery was illegal.
Scott sued for his freedom on these grounds, but the Supreme Court ruled against him, saying that to emancipate him would unconstitutionally deprive his owner of his property. But they didn't stop there.
Scott based his suit on a provision of the constitution that granted a citizen of one state the right to sue a citizen of another in federal court, which meant that he could only bring the case if he was legally a citizen. (You can see where this is going.)
The Supreme Court declared that Scott was not, and could not be, a citizen. It had long been an "axiom," of law, they wrote, that black people were "beings of an inferior order…so far inferior that they had no rights which the white man was bound to respect."
No person descended from Africans, the Supreme Court declared, could have the rights of citizenship in the United States.
This was in 1957. The Civil War began four years later.
This was in 1957. The Civil War began four years later.
The Emancipation Proclamation freed most American slaves, and the Thirteenth Amendment freed the rest in 1865. But the Dred Scott decision still stood, and black Americans remained barred from citizenship.
It would take a constitutional amendment to overturn the Dred Scott decision immediately, and that amendment would have to specify who was a citizen of the United Stated. That amendment was the Fourteenth, quoted at the top of this thread.
"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."
Note the bit at the end of that clause about "and of the state wherein they reside," by the way. That clause says that a state can't deprive you of citizenship, or of the rights of citizenship. It's one of the most important constitutional protections there is.
(But that's a story for a different day.)
(Also: Yes, I know, thanks. 1857. I put the over-under on corrections on that one at 14.)
The Fourteenth Amendment is an extraordinary thing. It guarantees due process and equal protection rights in state courts. It bars antebellum politicians who joined the Confederacy from federal office. It bans slaveholder compensation. It's great stuff.
It didn't go far enough in protecting voting rights, which led to the Fifteenth Amendment a little later, but again—story for a different day.
The Fourteenth Amendment was good. It was great. It was amazing. It was so amazing, in fact, that the Southern states refused to ratify it.
Congress ultimately had to tell the former CSA states that they couldn't come back into the Union on an unconditional basis until they ratified the Fourteenth. That did the trick.
So. The Fourteenth Amendment granted EVERYONE birthright citizenship precisely because the people who wrote it knew that if they left any loopholes those loopholes would be exploited by those who wanted to deny former slaves and their descendants equal rights.
"Who's a citizen?" the Amendment asks. "Everybody. You're born here, you're a citizen. Period. Unless your parents are ambassadors or something, because obviously then you're not subject to our laws. But other than that, everybody. EVERYBODY."
It's a thing of unalloyed beauty. It really is. It's a swipe of the sword at the Gordian Knot. It's a radical declaration of legal equality and community in the face of prejudices of race, creed, and parentage. So of course the Trump GOP hates it.
The status of birthright citizenship in the United States is unambiguous as a matter of law, and the principle is also foundational to our conception of national identity more broadly. Born here? You're one of us. Period.
The Fourteenth Amendment is the reason why anyone born in the United States is an American, and it came into being as part of the centuries-long project of extending legal equality to the children and grandchildren of those who were brought here in chains.
I'm not usually a fan of calling things you don't like "unamerican." But attacking the Fourteenth Amendment? That's unamerican. It's an explicit repudiation of what's best in us as a nation.
(Just a quick footnote: I didn't address the question of Native American citizenship since it's a bit complicated, not directly relevant to the contemporary question, and also now a matter of settled law. But if the thread hadn't been already ridiculously long, I would have.)
