In 1995, then–Assistant Attorney General Walter Dellinger testified in Congress about proposed legislation to deny certain immigrants’ children automatic citizenship upon birth.
He was clear. Such a bill, Dellinger argued, was “unconstitutional on its face.” Even the lawful alternative—an amendment to the Constitution—would go against the country’s history and traditions.
Perhaps more importantly, Dellinger made a compelling and enduring case for why lawmakers and judges shouldn’t be entrusted with the power of excluding an entire class of US-born children from the right to citizenship.
Tampering with birthright citizenship would “create a permanent caste of aliens, generation after generation—born in America but never to be among its citizens.” He continued: “To have citizenship in one’s own right, by birth upon this soil, is fundamental to our liberty as we understand it.”
Thirty years later, that notion is once again being put to the test by a Trump administration’s executive order meant to take away birthright citizenship from the American-born children of undocumented immigrants and visa holders.
Mother Jones spoke with Carol Nackenoff, the Richter Professor Emerita of Political Science at Swarthmore College and co-author of American by Birth: Wong Kim Ark and the Battle for Citizenship, about the order’s ramifications, the specter of a caste system, and the potential creation of countless stateless people in the United States.
This conversation has been edited for length and clarity.
Can you talk about the origins of the text of the 14th Amendment—which is at the heart of arguments guaranteeing birthright citizenship—as a product of the post-Civil War moment and a reaction to white supremacy?
I should first say that the notion of birthright citizenship didn’t start with the Civil War. It started long before that and we brought it over in American jurisprudence from English common law. It dates at least back to 1608—the idea that citizenship follows the soil on which you were born. A number of nations in the 19th and 20th centuries had birthright citizenship rules, especially settler nations.
The 14th Amendment was a reaction to the Dred Scott [Supreme Court] ruling of 1857 in which the chief justice writing for the majority said that Dred Scott had no standing in a US federal court to raise the question about his freedom because the framers never intended for slaves or formerly enslaved people to be part of “We the People,” part of the citizenship of the United States.
The framers of the 14th Amendment surely wanted to correct the understanding in Dred Scott and make slaves, or former slaves, born on this soil citizens of the United States—and they wanted to use a simple language to do it.
When the members of Congress were deliberating the 14th Amendment, some people said: What about gypsies? What about the Chinese?
And the response was, yes, if they’re born on this soil, they’re citizens. If they started saying that people who were born here had to be naturalized or were not citizens, they were concerned about the American-born children of people who had come here from England, Ireland, Scotland, Wales, Germany, and so on.
People who they had no desire to exclude and, in fact, were happy to have here. So they made a conscious decision not to exclude anybody from this general statement.
In a recent interview, a Harvard law professor described birthright citizenship as a “rule of non-racial citizenship” that “avoids the creation of a hereditary caste of people who are not citizens.” In what ways would Trump’s executive order on birthright citizenship enforce a caste system in the United States?
The 14th Amendment makes everyone born here equal. It is a non-caste-based notion of citizenship and once you start meddling with that, you’re introducing classes of people whose expectations and life chances will vary with their citizenship status.
The people born after this artificial date will be treated very differently than people born beforehand.
Gov-Politics
Legal
