On the XIV Amendment and the Current Efforts to Overturn It
In the closing days of the 2018 Congressional elections, President Donald Trump appeared desperate. He and his Republican Party colleagues already knew they were going to lose control of the House of Representatives to the Democrats; however, new reports suggested they might lose the Senate, too. Moreover, the economy was beginning to slip, due mainly to the seemingly endless and increasingly harsher trade war with China. A way had to be found to distract attention and rally his hardened base. The solution was to return to an issue not raised since early in the 2016 presidential campaign: birthright citizenship as it applies to children born in the U.S. to parents who are undocumented.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” said Trump in an October 29 interview with Axios, a news and opinion website, for its Axios on HBO show. “Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. Now they’re saying I can do it just with an executive order. Now, how ridiculous; we’re the only country in the world where a person comes in, has a baby, and that baby is essentially a citizen of the United States for 85 years, with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end…. It’s in the process. It’ll happen with an executive order.”
The comments had an almost immediate effect, simultaneously whipping his Republican base into line for the election and winding up the outrage machine for Congressional Democratic candidates to rally their supporters. This manufactured controversy drove tens of thousands more to the polls for the midterms, fueling the appearance of a revived interest in “democracy” — when, in reality, it was more a case of increased animosity and national chauvinism that brought people to the ballot box. In the end, the gimmick worked for Trump, staving off a possible loss of control of both houses of Congress, and laying the groundwork for the beginning of the 2020 presidential sweepstakes.
Leaving aside for the moment the assertion that Trump can change birthright citizenship without a constitutional amendment, his arguments are demonstrably false. For example, the U.S. is not the “only country” to have citizenship rights based on birthright, regardless of the status of the parents; 34 other countries, including Canada, Mexico and most other countries in the western hemisphere have what is called unrestricted jus soli (“right of the soil”). The number of countries with unrestricted jus soli has shrunk, however, in the last 30 years, as several European, African and Asian countries have taken a reactionary turn in response to an increasing number of immigrants and refugees from war zones and economically devastated areas of the world.
The XIV Amendment and Its Malcontents
The reason Trump is talking about birthright citizenship and trying to change it without a “constitutional amendment” is because the practice is already defined in the U.S. Constitution and has been in place since 1868. Indeed, several court cases, including key Supreme Court decisions, have upheld the broad but clearly-explained interpretation of what is called the “Citizenship Clause” of the XIV Amendment — one of three constitutional amendments passed after the Civil War during the period of Reconstruction, meant to provide civil rights to Africans freed from slavery and expand bourgeois-democratic rights throughout areas of the U.S. where they were restricted or non-existent.
The part of the U.S. Constitution in dispute — well, in dispute among Trump and his acolytes, that is — is the first sentence, or clause, of Section 1 of the Amendment, which speaks specifically to the question of birthright citizenship: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
For Trump and his mouthpieces, the magic bullet allowing the president to change 120 years of citizenship law with an executive order is the phrase, “subject to the jurisdiction thereof.” They believe that this specific phrase has never been “clarified,” especially in the context of modern immigration law. They argue that undocumented immigrants do not stand fully within the shadow of U.S. law, and therefore are not subject to this country’s jurisdiction. The “clarification” they are looking for is actually an affirmation of their argument. That is, they want to change — more to the point, narrow — the definition of what it means to be subject to the jurisdiction of the U.S., and thus strip citizenship rights from hundreds of thousands of children born to “illegal” parents.
Leading the charge is Dr. John Eastman, a law professor at the conservative Christian Chapman University in California and fellow at the reactionary thinktank, Claremont Institute. In an interview on the Legal Talk Network, Eastman said, “if the Fourteenth Amendment sets a lower floor,… people who are lawfully domiciled in the United States rather than temporary visitors or people who are unlawfully present at all, then Congress can certainly offer by statute its understanding of that phrase.” He also asserted that “the president would be well within his rights by Executive Order to tell [the U.S. State Department] to quit offering passports to people who are ineligible for them.”
This statement has been crudely repeated and echoed by numerous conservative, reactionary, nativist and nationalist mouthpieces, as well as by current and former officials and advisors around Trump. The groupies at the Washington Examiner went full “own the libs” in their gushing puff piece. The San Francisco Chronicle could barely contain their giddiness, enthusing over the current ideological leanings of the U.S. Supreme Court. Vice President Mike Pence went on C-SPAN and declared, “the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment, subject to the jurisdiction thereof, applies specifically to people who are in the country illegally.” But the most hyperbolic reaction came from former Trump aide and avowed fascist Sebastian Gorka, who went on the Fox Business Channel to express his support for Trump’s attack on birthright citizenship and baselessly assert on air, “There is an industry, in baby factories, people coming here to have babies, and then they get citizenship.”
What Congress and the Courts Have Said So Far
Contrary to the assertions of Trump and his minions, there is a long record of discussion in Congress and the federal courts on the question of birthright citizenship and its application — some of them with roots in the founding of the U.S. In Inglis v. Sailors’ Snug Harbor (1833), for example, the Supreme Court decision in favor of Inglis, who was born in New York City at the time of the Declaration of Independence, noted, “Nothing is better settled at the common law [level] than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.” For the Court, this meant that, because U.S. citizenship law was rooted in English common law, the same standard for granting such rights applied here as there. Similar cases, revolving around rights of inheritance and citizenship, occurred in that same period.
However, non-Europeans were often seen as outside of the common law. The most obvious examples were Africans held as slaves and Native Americans, with Chinese laborers later added. It was the infamous decision in Dred Scott v. Sandford (1857) that set the course toward the XIV Amendment; Supreme Court Chief Justice Roger Taney’s statement that Africans were “so far inferior that they had no rights which the white man was bound to respect” was a clarion call for abolitionists and free soil Republicans, and hastened the crisis that precipitated the Civil War.
These were the precursors for the Civil Rights Act of 1866 and the XIV Amendment, which established birthright citizenship for all persons born in the U.S. and thus subject to its laws. Following its passage, a number of legal rulings were issued that, in today’s changed language, appear to contradict the clear language of the Citizenship Clause. For example, in In Re Slaughterhouse Cases (1872), the Supreme Court noted in passing that the phrase, “subject to the jurisdiction thereof,” was meant to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” A year later, the U.S. Attorney General, George Williams, sought to clarify the question of jurisdiction again, in the wake of the Slaughterhouse Cases: “The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.”
The Chinese Exclusions Acts had limited the rights of Chinese workers who came to the U.S., allowing them to reside but preventing them from applying for citizenship. Despite these laws, however, the federal courts had ruled in several cases in favor of the citizenship of Chinese children born in the country. But the Supreme Court decision in United States v. Wong Kim Ark (1898) became the most pivotal of these cases, settling the question of birthright citizenship for 120 years. The justices in Wong Kim Ark clarified the extent of “jurisdiction,” outlining three exceptions to who is considered part of that legal category: those born to foreign rulers, diplomats, ministers, etc.; those born on public ships outside U.S. waters; those born to enemies engaged in hostile occupation of the U.S. The justices also tossed out the interpretation of jurisdiction from Slaughterhouse Cases, since birthright citizenship was not a question before the court.
Since Wong Kim Ark, the question of the citizenship status of children born to non-citizens has been considered settled law. Even after the U.S. formally created the category of “legal” and “illegal” immigrant in 1924, the “three exceptions” standard remained the precedent for deciding on questions related to citizenship rights and equal protection under the law. In Plyler v. Doe (1982), the definition of “jurisdiction” from Wong Kim Ark was applied by the justices in their rejection of a Texas law that denied access to K-12 public education for the children of undocumented workers.
Bourgeois Democracy and Citizenship Rights
So, does all this mean that Trump is doomed to fail in his effort to overturn the XIV Amendment and numerous Supreme Court decisions, and restrict birthright citizenship? Depends on who you ask. Liberals and non-Trump conservatives believe the White House will ultimately hit a brick wall on the steps of the Supreme Court. Even though nearly all Congressional Republicans and some key Democrats have already backed the plan to restrict birthright citizenship, these elements are convinced that “settled law” and a majority of the court will put an end to Trump’s efforts.
Meanwhile, the exploiters’ Left (so-called socialists and communists, etc.) has responded to Trump’s plan with an eerie silence. Apart from three articles among the more prolific websites (World Socialist Web Site, SocialistWorker.org, PeoplesWorld.org) and a short aside in the usually verbose Workers Vanguard, the Left has chosen to stay silent on the issue, leaving it to the imagination of the readers what they’re actual position is — although anyone with any experience with these petty-bourgeois sects can tell what they would do about it: either something pointless, like a “mass protest” that does nothing to actually change the situation, or some sterile “party building” that does nothing but add handfuls of individuals to their respective membership rolls.
The fact is, however, that while his executive order might be seen by many bourgeois legal scholars as authoritarian and ham-fisted, Trump will issue it when it’s expedient for him to do so. That, of course, will prompt a legal challenge that will quickly find its way to the Supreme Court. At that point, the real question will be what will win out in the debate: political ideology or “settled law.” Given its current composition and recent record, the chances of the high court deciding that the White House’s executive order is constitutional are roughly even to that of affirming past decisions.
This is the reality of “democracy” as we know it — bourgeois democracy, the democracy of the exploiters and oppressors. It is “liberty” and “freedom” for the capitalist owners and their petty-bourgeois organizers, not for the workers. And it is only as broad or as narrow as the ruling classes will allow or can afford. This is as true for what are considered its bedrock, or fundamentals, such as citizenship or civil rights, as it is for the various reforms fought for over the last century, such as the minimum wage or universal health care.
For workers, the only way we can insure that the core values and fundamentals of society work for us is through the revolutionary overthrow of the exploiting classes and establishment of a workers’ republic. Today, this starts with the political development and conscious self-organization of our class. As our fellow workers come together in action groups, assemblies and committees to grapple with the issues they face, both practical and political, they will be preparing themselves for future confrontations with their class enemies — confrontations that are not impotent pleading or petitioning, but manifestations of the class struggle.