The 14th Amendment, Birthright Citizenship, and the Ignoble Sunset of Trumpism

An editor recently came across this analysis by attorney and candidate for Connecticut Attorney General Peter Goselin concerning Trump's claim that he could rescind birthright citizenship with an executive order. This is a nice, concise analysis. Mr. Goselin may be reached at Goselin4AG.org.

Our thanks for letting us publicize the analysis, and Good Luck with the campaign!

November 3, 2018

Written by Peter Goselin, JD.

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I have been a little concerned at the comments by some legal experts and talking heads suggesting that Trump would *not* issue an executive order on this [ending birthright citizenship by executive order] because, after all, it is clearly unconstitutional.  I believe it's quite possible he will carry out his threat to do so and I think we have to be prepared for that possibility.

And although I know that fact will sound threatening to some liberals, as a leftist (and a lawyer) I believe that if Trump chooses that route he may very well dislodge the rock that decisively crushes the anti-immigrant right.

First, let me be clear about this. The Constitution itself is a document written by white male slaveholders, merchants, and bankers. They did not represent the American people then any more than their ilk would today. I have no qualms about interpreting it and applying it to provide the greatest possible protection to human rights, and I believe anyone who claims that the Constitution must be interpreted solely according to the will of the so-called Founding Fathers is merely protecting a system that was founded in white supremacist ideology.

The 14th Amendment, on the other hand, came into being three quarters of a century after the Constitution and the original Bill of Rights. Being generated by Congress of course it does not reflect a single point of view. But it came into being at a time when the capitalist concept of free contract was still (at times) a progressive social force. And so it is here, declaring first that "All persons born or naturalized in the United States" are citizens and then that, as citizens, these persons cannot have their "privileges or immunities" infringed upon or their "life, liberty, or property" taken by any state except with due process of law.

From the perspective of legal thinkers of that time, the significance of the language of the 14th Amendment is its radical declaration that it confers on "all persons" the kind of rights that in many parts of Europe at that time still were enjoyed only by burghers and landowners. In the US this moment in history is the height of progressive nationalism, effectively giving every person born in the US the right to enter into contracts, purchase property, access the courts, and do all those things that at one time had been the right of only a small minority of the population of any nation.

It would have been incredible for the drafters of the 14th Amendment to have decided, in this historic moment, to exclude from this new kind of citizenship persons who were born in the US but whose parents were not citizens. The very nature and purpose of the 14th Amendment was to draw into the circle of capitalist legality those persons who had previously been excluded, especially African Americans and the growing ranks of white industrial workers.

But even if one were to produce an argument that the Congress that wrote the Reconstruction Amendments and drafted the statutes that first conferred civil rights* also intended to exclude people born in the US to non-citizens (*42 U.S. Code Section 1981 giving all persons the same right to contract "as is enjoyed by white citizens" is still relied on in legal claims challenging race-based discrimination) that doesn't answer the question whether we, in 2018, should interpret the 14th Amendment so narrowly.

In only the last decade, the language of journalism and public policy has all but universally abandoned the ugly and ungrammatical phrase "illegal alien" to describe people who are present in the US without proper authorization. Although unsuccessful to date, it's clear that Congressional drafters of immigration reform legislation understand the need to provide some meaningful "path to citizenship" to some or all of the 11 million undocumented immigrants in the US. Attacks on undocumented immigrants, like Trump's Muslim ban, his Border Wall, and his disastrous policy of separating families at the border have evoked broad, popular outrage. There is certainly no basis to conclude that it reflects the wishes of the people of the US to change a longstanding interpretation of the Constitution that confers citizenship on any person born within US borders.

To the contrary, Trump's attempt to cram that interpretation down the throats of the majority of people who reject his narrow nationalism could be politically disastrous for him and for the anti-immigrant right as a whole. More clearly than any previous debate, a discussion about birthright citizenship would force the people of this country to confront the problem of 19th century nationalism in the 21st century. To embrace the end of birthright citizenship requires that we decide, as a people, to actively deprive people who live and work alongside us from the protection of those rights we associate not only with being citizens but with being humans.

An executive order to terminate birthright citizenship would be a nasty, racially-motivated endeavor to protect the "whiteness" of the United States. It is disgusting to imagine that the President of the United States would issue such an order. But it would not be the first act by this president to evoke the disgust of the American people. And I am confident that if Trump chooses to fight that battle, it will only raise the political opposition to his reign to a higher level and generate greater solidarity between citizens and non-citizens in the US than we have seen before.

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Editor's note: 

People forget that the SCOTUS is the weakest branch partly because it attempts to be apolitical.  That also creates a weakness. During times of great political stress, the court tends to retract its oversight role, which allowed for horrible decisions like Plessy v Ferguson and the Korematsu case that approved of the Japanese internment camps.

If Trump were to do try repealing the 14th amendment right now, then he'd unleash a maelstrom against his party.  That's right now, though. Naomi Klein talks about this in her book The Shock Doctrine.  What Trump is doing with this is sending up a test balloon. He's getting people riled up over and over and trying to give us outrage fatigue.  He will then splatter more of his awful ideas at us and, just like a day trader that makes money on the momentary ups and downs in the market, he slips in something that would have dominated all media coverage for weeks and would have cost him dearly in normal times.  Just like a day trader will monitor a bunch of different stocks, the Trump admin is playing on the momentary lapses in oversight caused by his relentless lying to slip in regulatory changes in all regulatory agencies that would have been condemned universally in normal times.

That's exactly what he Trump did with his Muslim ban.  The first three iterations were blatantly bigoted and unconstitutional.  The last version got the approval of SCOTUS with barely a mention because everyone is so busy with the dozens of other problems he makes every day. While we can be assured, at this moment, that this bigoted plan is going nowhere, that may change very soon. That's why it's crucial to understand both the issues and candidate's values to ensure that we leave a better nation to our children than what we have inherited.
If you're from Connecticut, then you also need to check out Mr. Goselin, at Goselin4AG.org, and ask if his values will enable you to leave a better world to your children than we have now.