Politics

I am lead counsel in the challenge to Donald Trump’s birthright citizenship executive order. As I and my team help the ACLU legal director, Cecillia Wang, prepare for the supreme court argument in this case on Wednesday, we are poring over legal minutiae and sharpening our arguments. But the larger questions that loom over the whole case are simple: What does it mean to be an American? Will we adhere to the best of American history and protect the values of equal citizenship and opportunity?

In early America, like today, people born on US soil were citizens, even if their parents were immigrants. That’s a principle we inherited from England as part of a body of rules known as the “common law”. In England, that rule was originally about monarchical power; but in our young republic it found new life as a principle of equal citizenship. As waves of immigrants arrived, the birthright rule ensured that the child of Irish or German immigrants would be no less citizens than those who traced their lineage back to the Mayflower.

Before the American civil war, this principle of equal citizenship was woefully incomplete. The founders declared that “all men are created equal”, yet the original constitution tacitly accepted the sin of slavery and counted enslaved human beings as “three-fifths” of a person.

These two contradictory ideas – equal citizenship of everyone born in this country, and the exclusion and subordination of a large part of our nation – came to a head in the supreme court’s shameful decision in Dred Scott. The court rejected the traditional birthright rule when it came to Black Americans, claiming that they could never be US citizens even if they were born free on US soil. The decision helped precipitate the civil war.

After the war, Congress drafted the constitutional provision at issue in Trump v Barbara – the citizenship clause of the fourteenth amendment – to eliminate Dred Scott’s mistake and instead enshrine birthright citizenship into the text of the constitution. That clause guarantees that “all persons born” in the US are citizens, except for people such as ambassadors’ children who are immune from “the jurisdiction” of the United States. Congress secured the birthright principle in the constitution to head off future denial of birthright citizenship by any branch of government.