I’m sure you’ve read in the news about the ongoing Supreme Court birthright citizenship case, Trump v. Barbara. It’s a strange case, because there’s really no legal issue here. All prior court rulings have affirmed that the 14th Amendment of the US Constitution means that people born in the United States are citizens, with very few exceptions, such as children born to foreign diplomats.
Yet, D. John Sauer, the U.S. Solicitor General, who’s representing the Trump administration in the case, is arguing that millions of US citizens should be denaturalized and deported.
He argues, bizarrely, that the 14th Amendment was intended to provide birthright citizenship to freed slaves, and not illegal aliens or temporary visitors.
He also argues that the 14th Amendment contradicts legal practice in other countries, which is an equally bizarre argument for conservatives like Sauer, who usually insist on never comparing the US Constitution to any other foreign legal framework.
A number of commentators, I’ve noticed, have fastened on the legal aspects of the case and many have expressed outrage and shock at the very possibility of questioning one of the most “American” of laws.
But it’s worthwhile considering the history and politics behind the current push to change this law, because the attempt to eliminate birthright citizenship isn’t new.
The powerful right-wing Federation for American Immigration Reform (FAIR), founded in 1979, has long advocated for doing away with this right.
Since 1993, bills to restrict or eliminate birthright citizenship have repeatedly been introduced at the state or federal level, mostly by Republicans, but also by the odd Democrat, not least Harry Reid.
One of the driving forces behind these recurring attempts was Pat Buchanan, the staunchly nativist politician who rose to fame in the early 1990s with a new political language that included slogans like “Make America First Again.” Buchanan developed the style of right-wing politics perfected by Trump. Of course, Buchanan had his predecessors too, but that’ beside the point here.
Listen: The Trump administration, like its ideological predecessors, is looking to reshape the law according to its white nationalist, fiercely anti-immigrant template of “true” America.
Trump himself has called birthright citizenship “ridiculous” for a long time, and in a first for a US president, Trump sat in on the first part of the oral arguments, but left when ACLU’s Cecilia Wang began her argument defending birthright citizenship.
The Supreme Court will end up upholding birthright citizenship if the Justices stay true to the 14th Amendment and past statutory rulings. But whether they’ll stay true or not to them is a different question—or need I remind the readers about that little issue called the constitutional right to abortion which some conservative Supreme Court Justices swore they would never repeal in their confirmation hearings?
Which brings me to my final point: More important than the legal arguments or the outcome of this case is the near-complete ultra-nationalist capture of America’ highest legal institution. And that should raise a lot of questions about what should be done in the present moment.
Read more about the legal intricacies, history, and politics of US birthright citizenship here:
https://www.greenbag.org/v9n4/v9n4_ho.pdf?utm_source=substack&utm_medium=email
here:
https://www.newsweek.com/trump-end-birthright-citizenship-democrat-bill-1193897
and here:
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