With birthright citizenship — which was enshrined in the 14th Amendment to clarify the legal status of Black Americans following the Civil War — on the chopping block, civil rights groups are on high alert for threats to all rights, even those long seen as safe.
There’s concern that a decision undermining birthright citizenship “could open the door and create a kind of slippery slope,” Morenike Fajana, senior legal counsel for the NAACP Legal Defense and Educational Fund, told Capital B during a recent press call. She was referring to a growing fear: If birthright citizenship isn’t sacred — if the U.S. Supreme Court allows President Donald Trump to rewrite the U.S. Constitution through executive order — then nothing is.
“Other protections that we think of now as settled and protected and unmovable could also be subject to the same sorts of rollbacks,” Fajana added.
The court on Wednesday is hearing oral arguments in a case that examines the Trump administration’s challenge to birthright citizenship. Civil rights groups warn that a decision against it could not only leave hundreds of thousands children stateless, but also reshape how constitutional rights are understood and applied.
Oral arguments in the case arrive as the federal government continues to direct venomous rhetoric at marginalized groups and crack down on migration to the U.S.
During an appearance on Fox News this month, U.S. Attorney General Pam Bondi had the internet up in arms when she declared, “Being a citizen in our country is a privilege, not a right.”
Her comment angered so many because it seemed to ignore what the Constitution itself says about citizenship — that “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.”
And during a Cabinet meeting in March, Trump said that Minnesota residents of Somali descent “come from a crooked country, disgusting country, one of the worst countries in the world” and that they have “low IQs, and they rob us blind.”
The administration has also tried to end temporary legal protections that have allowed some 350,000 Haitians to live in this country. But a federal judge in February blocked those efforts, and criticized former Homeland Security Secretary Kristi Noem for calling foreigners “killers, leeches, and entitlement junkies” who are “flooding our nation.”
The court is expected to announce a decision by the end of June. For an overview of the history of birthright citizenship and the implications of overturning it, read on.
What are the origins of birthright citizenship?
To understand where birthright citizenship came from, we must go back to the immediate aftermath of the Civil War, when the U.S. was confronted with a major question: Who, exactly, counts as a citizen?
Though Black Americans were no longer enslaved, they enjoyed no guarantee of citizenship. And for decades already, they had faced pressure from nearly every quarter of society to leave the U.S. and go elsewhere. They feared that they could meet the same fate as Native Americans, who had been forced to relocate through the Indian Removal Act of 1830.
Making matters worse were certain Supreme Court decisions. In 1857, the court observed in Dred Scott v. Sandford that Black Americans “had no rights which the white man was bound to respect” — including citizenship.
Still, Black Americans continued to maintain that they were citizens; it was their birthright. Progress finally arrived the year after the Civil War ended, in the form of the Civil Rights Act of 1866, which declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Birthright citizenship, in other words, was now the law of the land.
But uncertainty remained, since an act of Congress could be overturned by future lawmakers. To reinforce the guarantee of citizenship, Congress proposed a constitutional amendment that was then approved by the states. Ratified in 1868, Section 1 of the 14th Amendment ensured citizenship for anyone born on U.S. soil, including Black Americans.
“When citizenship was loosely defined, racism could determine who enjoyed constitutional rights,” the scholar Martha Jones wrote in a 2018 piece that chronicled the history of birthright citizenship. “Thousands of Black Americans were left to live under an ever-present threat of removal. The story of their fight for the ‘right to residence’ is a cautionary tale for our own time.”
Why is Trump attempting to restrict birthright citizenship?
The president and his allies contend that the 14th Amendment has been interpreted too generously, that it was never intended to extend citizenship to everyone born in the U.S.
They often point to language in the amendment such as “subject to the jurisdiction thereof.” They say that such phrasing excludes the children of undocumented migrants and those who are in the country temporarily — including some 350,000 Haitians — because, technically, they remain loyal to another country.
As Trump and those of the same mind see it, birthright citizenship has been a kind of “loophole” that has fueled unauthorized migration.
But legal experts widely dispute these claims.
“Congressional records indicate that the 14th Amendment’s broad guarantee of birthright citizenship was always intended to include the children of immigrants — regardless of their parents’ legal status,” Samuel Breidbart and Maryjane Johnson wrote in February for the Brennan Center for Justice.
As evidence, they point to key historical moments, including a statement from U.S. Sen. John Conness of California. He said that the amendment’s language “declare[s] that the children of all parentage … should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”
Additionally, Breidbart and Johnson note the 1898 Supreme Court case United States v. Wong Kim Ark, in which the court held that a child born in the U.S. is a citizen even if that child is born to noncitizen parents.
How could limiting birthright citizenship affect vulnerable groups?
Civil rights groups say that weakening birthright citizenship could fundamentally alter the interpretation and enforcement of constitutional rights.
“I think that there is a grave concern that if the Supreme Court allows the president to rewrite the citizenship clause by executive order, we don’t know what we can count on and what rights we have,” Taryn Wilgus Null, senior counsel at the Democracy Defenders Fund, told Capital B during the press call, underscoring fears that eroding this protection could dramatically destabilize really any right that has long been viewed as safe.
Conchita Cruz, the co-founder and co-executive director of the Asylum Seeker Advocacy Project, highlighted that this agitation is already taking hold in the real world.
She told Capital B during the call that families, specifically asylum seekers in the U.S. who are expecting, are questioning not only their children’s futures but also their own: If a constitutional guarantee such as birthright citizenship can be undone, Cruz asked, “what does that mean for all of their rights?”
There’s also the fear, Breidbart and Johnson explained in their story, that without U.S. citizenship, some children could become stateless — citizens of no country.
“People who are stateless often lack access to basic rights and services, such as health care, education, and the ability to travel freely,” they wrote. “Without U.S. citizenship, these children could also end up deported to foreign countries where they have never lived and where their welfare would be endangered.”
Taken together, these concerns shine a light on a deep anxiety: that curtailing birthright citizenship would have a major impact not just on who’s considered American — but also on how secure that recognition and any number of other rights are for everyone.
The post The Supreme Court Fight That Could Unravel Who Gets to Be American appeared first on Capital B News.
