First came Dred Scott v. Sanford, the 1857 Supreme Court decision ruling that African-Americans weren’t citizens and had no constitutional rights.
After the Civil War, Congress enacted the 14th Amendment to supersede the Dred Scott ruling and make the newly-freed slaves citizens. It declared 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.”
This is straightforward, unambiguous, and means what it says: If you’re born here, you’re an American. The Supreme Court said so in the 1898 Wong Kim Ark case.
Wong Kim Ark was a child of immigrants, but no matter, being born here made him a citizen. The children of today’s illegal immigrants are U.S. citizens, too, but Trump doesn’t like that, and aims to change it.
So when he takes office in January 2025, he’ll issue an executive order prohibiting federal agencies from issuing Social Security numbers or passports to children of migrants. Then the Supreme Court will decide what rights these children have under the 14th Amendment.
This strategy was used by abortion opponents, too. State legislatures enacted laws, unconstitutional when passed, with the aim of getting the Supreme Court to revisit and overturn Roe v. Wade. We know how that turned out.
Given a Supreme Court with a hard-right majority willing to overturn established precedents to make politically-motivated decisions, there’s not been a better time since Dred v. Scott to make a frontal legal assault on birthright citizenship.
An entire movement has been agitating for this, and they’ve cooked up a legal strategy, based on the non-analogous notion that if the U.S. were invaded by foreign troops, their children born on U.S. soil wouldn’t be citizens. A conservative judge wrote, “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”
So the idea is to designate illegal immigrants as “invaders.” But it’s a bogus argument, because the migrants come here to work or seek asylum, not to wage war against America or seize its territory.
Legal scholars warn we should take the strategy, and the attack on birthright citizenship, seriously. Not because the argument is logical, or holds water, but because of the kind of Supreme Court we have today: Not all that different, in some respects, from the Court that existed in 1857.
Read the entire Mother Jones article here.