How Trump, etal., will try to end birthright citizenship
Stephen Miller, Trump’s head of Gestapo, has already indicated he will work to eliminate birthright citizenship. (As an aside, he has also indicated a desire to go after naturalization, i.e. revoking the citizenship of people who are naturalized citizens. I presume the target of this action would be non-white naturalized citizens- hispanics, asians and blacks [1]).
For those that don’t know, birthright citizenship is where, if a child is born on US soil, that child is a citizen regardless of whether the parents are. Euphemistically called “anchor babies” these children are US citizens. This interpretation of the Constitution has long irked xenophobes who see it as a means for non-citizens to remain in the country despite not having legal status.
This birthright citizenship is due to the implementation of the 14th Amendment ratified in 1868 in the wake of the Civil War. While there are other sections to each the post-civil war amendments, the key points of each are:
13th freed slaves and eliminated slavery
14th gave the former slaves citizenship
15th was written to protect the former slaves’ right to vote
Here is the full text of Section 1 of the 14th amendment:
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.
“All persons born…in the United States”
I predict that within the next couple years, Trump or his allies will file a lawsuit which will go up to the US Supreme Court to challenge birthright citizenship. The argument will be that the amendment, written in the aftermath of the elimination of slavery was only meant to apply to former slaves and never meant by the writers to apply to future illegal immigrants. They will use the 13th and 15th as support for this interpretation because both specifically created to address abuses by the white former slave states against their black populations.
I mentioned this threat on another platform and one person responded “do you really think SCOTUS will let the Trump administration change the Constitution?” SCOTUS doesn’t NEED to have the document changed. All that is needed is for SCOTUS to INTERPRET it. We have already seen SCOTUS in action using their bogus doctrines of Textualism and Originalism to alter the legal landscape of the nation.
Let’s look at these three concepts.
Originalism: a type of judicial interpretation of a constitution (especially the US Constitution) that aims to follow how it would have been understood or was intended to be understood at the time it was written.
The principle or belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written.
Textualism: a legal theory that interprets laws based on the ordinary meaning of the text, without considering other factors:
The intent of the legislature. The purpose of the statute. The legislative history.
It can easily be argued under both Originalism and Textualism that the authors of the amendments were writing them to specifically address the plight of former slaves and that there was no intent to extend such rights to illegal immigrants.
An article in the Akron Law Review regarding the 14th Amendment and its primary author John Bingham, US House Representative from northern Ohio illustrates the factors that influenced his authorship and almost completely dwells on the treatment of black people of that pre-civil war and subsequent post civil war era.
Quote: “Most importantly, he drafted the Fourteenth Amendment in the context of the Black Codes of 1865–66 and the violence directed at blacks and white Unionists in the immediate post-war South. It was in the context of this history that John Bingham wrote Section one of the Fourteenth Amendment. What did he desire to accomplish with this provision? We can never fully know, of course, but the context of the Amendment suggests that his goals were sweeping and broad. He and others in the majority on the Joint Committee understood that they had to protect the life, liberty, safety, freedom, political viability and property of the former slaves.” [2]
[1]
https://www.vox.com/2018/7/18/17561538/denaturalization-citizenship-task-force-janus
[2]
https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1349&context=akronlawreview
