President Donald Trump looks on during a meeting.Bonnie Cash – Pool via CNP/Zuma
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.
“They could be deported anywhere the administration chooses. They could become stateless. These folks are going to be living in fear.”
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.
People won’t be able to get social security numbers, passports, birth certificates, and driver’s licenses. They can’t cross international borders securely and expect to come back. If they find low-wage work, they’re going to be subject to the whims of their employers. They’re unlikely to be able to get health insurance. They’re going to be like any other undocumented resident, even though they were born here. They may lack fluency in another language, they may lack any contact with another country, and they could be deported anywhere the administration chooses. They could become stateless. These folks are going to be living in fear. They’re going to be living in the shadows. They’re going to become liminal.
Also, everybody’s going to have to provide proof of their parents’ citizenship status at the time of their own birth. My mother’s birth certificate is a handwritten note from a country doctor before there were any kind of standardized birth certificates. My father’s birth certificate was held in some kind of facility in St. Louis, and there was a fire and they were all burned up. There are an awful lot of people who are going to be caught in limbo, who are not going to be able to provide documents. Some scholars, including Professor Linda Bosniak, have talked about this sort of long-term limbo based on alienage, for example, as another form of caste. There will be a new kind of stratification among people put in place if this were allowed to go into effect.
Opponents of birthright citizenship have long argued for it to be abolished. Is there something different about the effort at this current moment?
Without someone like Trump in the White House, I don’t think we would be where we are right now. But there is still a growing vocal contingent speaking out against liberal birthright citizenship. I would say there are three things going on. One, there is a global trend to make birthright citizenship less generous. I think it’s partly due to ethno-nationalism and the rise of populism. A second reason is we’ve seen a huge surge in immigration. A third reason is a lot of people have been freaking out since population projections started indicating that we were going to become a majority-minority nation by 2050. For some folks, that is uncomfortable and intolerable. It’s not their country, it’s our country.
At the core of Trump’s attack on birthright citizenship is a centuries-old conflict over who gets to be an American citizen and who decides that. You co-authored a book titled American by Birth that covers some of that history in a context where anti-immigrant sentiment was also very prevalent. What is the importance of the Wong Kim Ark Supreme Court case for today’s debate?
Wong Kim Ark was born in the United States [to Chinese parents] in probably 1873 and always maintained an address in San Francisco. He was classified as a laborer. So, if he had been trying to come from China after 1882 he would not have been allowed in [under the Chinese Exclusion Act] if he had not been born here. He traveled with his family to China to find a bride and his parents stayed there. On return, he was not allowed to land. At this point, there were some US officials who wanted a test case about birthright citizenship. They were arguing that Wong Kim Ark was born to alien parents who were subjects of the Emperor of China and therefore he was not subject to the jurisdiction of the United States.
The Supreme Court rejected all those arguments and Justice Horace Gray wrote for a 6-2 majority that Wong Kim Ark was a citizen by birth. They read the 14th Amendment very simply and the exceptions very narrowly. What’s ironic is we like to love Justice [John Marshall] Harlan, who wrote the dissent in Plessy v. Ferguson that “there is no caste here, our Constitution is colorblind and neither knows nor tolerates classes among citizens.” But he dissented in Wong Kim Ark, saying the nation has a right to exclude a race that it considers unassimilable.
Trump’s executive order has already faced several legal challenges, with lower courts blocking its implementation. Do you anticipate that the Supreme Court might take up this case and, if so, how do you think the justices might rule?
I don’t see the Trump administration yet trying to make an argument that Wong Kim Ark should be overturned. But the argument that children of people who themselves broke the law to come here without the nation’s consent shouldn’t be birthright citizens scares me a little bit, given this current court. They tend, right now ,in these federal cases to say that it’s different because Wong Kim Ark’s parents were here with the permission of the United States. They were legally domiciled here. I could imagine the possibility, if [the justices] get really aggressive, that they would say there is a difference.
One thing that might slow things down is that in the current version of the Immigration and Nationality Act, the rule is the Wong Kim Ark rule. It’s reading the 14th Amendment very simply and the exceptions very narrowly. And Congress hasn’t changed that. They’ve proposed changes to birthright citizenship laws every Congress since 1993 and most of them don’t even get a hearing. This year, 40 people introduced an amendment to the INA that mirrors the language in Trump’s executive order, except it adds protections for children of non-citizens who are actively serving in the US armed forces. The court could simply say: Congress has spoken and the executive order doesn’t override it.
