5-year-old racist: Hey, why is everyone talking about birthright citizenship and the 14th Amendment?
Me: Well, my little Caucasian friend, it’s because of racism.
Oooh, I like racism! Tell me more!
Well, once upon a time, in a kingdom not very far, far away, a group of white men passed the Naturalization Acts in 1790 and 1795, declaring only white men of “good moral character” could become citizens.
Years later, in 1857, an enslaved man named Dred Scott went before nine white men and sued for his freedom. The white men, who formed the Supreme Court, eventually created a fairy tale called Scott vs. Sanford, which came to be known as the “Dred Scott Decision” and basically said this country was founded on the premise that black people were “so far inferior that they had no rights which the white man was bound to respect.”
But I don’t understand. Black people are citizens, aren’t they?
Kinda. In 1868, Congress ratified the 14th Amendment to the Constitution.
Is that the one about committing adultery? Also, what is adultery. Will I commit it when I turn 18 and become an adult?
Probably.
But you’re talking about Biblical commandments. The 14th Amendment finally granted citizenship to former slaves, essentially overturning the Dred Scott ruling. You might know it from its equal protection clause, which has been used in cases such as Brown v. Board of Education, which overturned the premise of separate but equal; Loving v. Virginia, which overturned laws banning interracial marriage; or Regents of the University of California v. Bakke, which outlawed racial quotas but upheld the use of race in determining admission to college.
But what does any of this have to do with immigrants?
Well, that amendment settled the question of citizenship by defining a citizen as:
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.
But Donald Trump says many legal scholars believe he can issue an executive order changing that.
Wow. Is it true?
Trump is lying. Just like when he said America is the “only country” that grants birthright citizenship (there are at least 30), there aren’t “many legal scholars” who believe he can do that. But there are some.
Well, I’m only five, plus I’m racist, which means my reading comprehension isn’t that great. But even I can understand that the Constitution says anyone born on U.S. soil is a citizen. Can the president overrule the Constitution?
Well... Kinda.
Hold up. Everything I’ve heard says he can’t. What the fuck does “kinda” mean?
Stop cursing. Your racist mother wouldn’t appreciate that kind of language.
She lets me say the n-word.
Of course, she does.
Anyway, Trump can’t unilaterally issue an executive order overturning something that is written in the Constitution, but as the chief executive, he can tell people to do unconstitutional shit, and they are legally required to do it.
For instance, he can tell the State Department to stop issuing passports to children of non-citizens because the State Department is part of the Executive Branch. If he signs the Executive Order, he could theoretically tell Immigration and Customs Enforcement (ICE) officers (again, part of the Executive Branch) to deport the children of undocumented residents.
That sounds cool. But the Constitution says...
I know, I know, Racist Baby. But he could also declare that he has these powers because of a state of emergency declared after 9/11.
But that was 17 years ago!
Yes, it was. But Trump and his Republican cronies in Congress keep quietly extending Proclamation 7463, which put the country in a perpetual state of emergency after the terrorist attacks of 2001. Obama did the same thing.
But if Trump did this, it would immediately be thrown out by a federal court, right?
Well... kinda.
It depends on which court hears it. If it lands in front of a conservative court, then who knows? Plus, Trump has been quietly filling the courts with conservative judges. Right now they are confirming judges while Congress is in recess.
But when the Supreme Court gets it, it wouldn’t stand a chance, right?
Well... maybe.
But both you and my racist toddler brain tells me that the Constitution clearly says: “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.”
Well, there are some conservative experts — not very many, but some — who say too many people ignore the “and subject to the jurisdiction thereof” clause. In short, some, like Matthew Spalding, contend the 14th Amendment was intended to only apply to children born in the U.S. and who are not subject to the laws of another country. He writes:
Many today assume the second half of the citizenship clause (“subject to the jurisdiction thereof”) merely refers to the day-to-day laws to which we are all subject. But the original understanding referred to political allegiance. Being subject to U.S. jurisdiction meant, as then-Chairman of the Senate Judiciary Committee Lyman Trumbull stated, “not owing allegiance to anybody else [but] subject to the complete jurisdiction of the United States.”
Some suspect recently confirmed Supreme Court Justice Brett Kavanaugh believes the same thing.
But is that what Trump believes?
Trump reads on the same grade level as you. He’s just trying to appeal to his racist, white nationalist contingent.
Damn. But why do you think it’s racist?
Because it’s a problem that doesn’t exist. The number of children born to unauthorized immigrants has declined for more than 10 years, according to Pew Research. So has the number of undocumented border crossings. And crime by immigrants has always been lower than crime by citizens.
It is all a myth.
But if it’s unconstitutional and not likely to happen, why is he doing this?
Hold up, racist baby. I never said that.
You said it was unconstitutional.
So were Japanese Internment camps. Segregation was unconstitutional, too. So is shooting black people in the face and suppressing the vote. Trump is doing what America has always done.
They do racist shit and pretend they didn’t know until they got an official ruling on their racism.
It’s what made this country believe blacks had no “rights which the white man was bound to respect.” It’s what made America think separate could be equal. It’s what made them think white men could be of “good moral character.”
Ultimately, it’s what made America great...
Again.