Donald Trump would roll back immigrant rights to before the Civil War
Donald Trump has a new variation on his campaign theme of petulant xenophobia, and it has left some rival GOP presidential hopefuls scrambling to catch up, while others boast that they got there first.
What is the hot new rallying cry? Opposition to the Fourteenth Amendment to the U. S. Constitution. Specifically, they take issue with the first sentence of the amendment: “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.” As campaign planks go, promising to either delete or ignore that sentence is as hateful as it stupid, and yet, as absurd as that plank is, it really demands our attention.
Now, don’t go get me wrong: I’m not saying that presidential candidates should never take issue with parts of the Constitution. As much as I’ve always wanted to visit a real speak-easy, I have no serious issues with FDR’s promise, in 1932, to seek the repeal of the Eighteenth Amendment. But the Eighteenth Amendment is not the Fourteenth Amendment. And the opposition to “birthright citizenship,” which Donald Trump has made central to his campaign agenda, and which the other candidates are helping to push into the American mainstream, is in fact, a radical tinkering with the very basis of American citizenship.
That’s right, the Fourteenth Amendment isn’t just an important part of the story of Reconstruction, or the end of slavery. It actually resolved an incredibly important, and intensely controversial, question about our country. The nature of American citizenship was vaguely defined for the first 90 years or so of the nation’s history. The first Congress passed a naturalization act which enabled immigrants to become citizens if they could prove that they were “free, white persons,” but the precise meaning of “citizenship” per se was still unresolved, and hotly debated, in the years leading up to the Civil War.
The infamous Dred Scott case of 1857 was actually intended by Chief Justice Roger Taney as a way to resolve the citizenship issue once and for all. According to Taney, only white persons had been contracting parties to the U.S. Constitution, and therefore membership in the American polity and everything that went with it could only be claimed by whites. Whether non-whites were born on U.S. soil or not was irrelevant.
Taney also claimed that slavery was protected by American private property law, and could therefore extend to any place in the Union, whatever Congress, state legislatures, or the Missouri-Maine Compromise might say to the contrary. (The Dred Scott case was, by the way, extremely unpopular in Maine, where the state legislature declared it to be “not binding, in law or conscience, upon the government or the citizens of the United States.”)
The Civil War and its aftermath seemed, therefore, to render the Dred Scott decision moot, but actually the war only complicated the old confusion over citizenship in the U.S. After the Thirteenth Amendment banned legal slavery in the U.S., the question of what makes someone a citizen, and therefore what sort of republic we live in, was still unresolved.
It’s not surprising that Trump has chosen to attack the basic underlying constitutional definition of American citizenship. Polling data suggests that he’s doing well with likely primary voters because he’s famous — this long before the election, reality TV name-recognition is even better than money in the bank — but he’s banking on another kind of political capital.
As I noted, the first naturalization law in the U.S. was based on race, and that seems to be the definition of citizenship that mobilized the Boston Trump supporters who battered a 58 year old homeless man because they thought he was “illegal.” When asked about the thugs’ endorsement of his campaign, Trump defended their “passion,” and their desire to “make this country great again.”
Trump, in short, is betting that enough Americans will stand with Roger Taney’s opinion in Dred Scott about who belongs in the US, and how we can tell who doesn’t belong, to put him in the White House. And most other GOP candidates seem afraid to speak out against Trump’s wager on the worst traditions of the American electorate.
I think the voters are better than so many of their would-be leaders think they are. And maybe I’m wrong. But if I’m right, it’s because the Fourteenth Amendment, and the citizenry it helped to create, have made the United States a much better country than Trump and his court of jesters can understand.
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