SIDEBAR - The Fourteenth Amendment's Birthright Citizenship

This Blog is spending the year exploring the incorporation doctrine of the Fourteenth Amendment. But, timely as today’s headlines, it will dip a toe in on the citizenship piece of the Amendment.

First, the Fourteenth Amendment is like no other aspect of the United States Constitution. It was ratified through knuckling under the vanquished. For clarity – the states in rebellion lost. They were insurrectionists who were traitors to the United States; they rose up in order to maintain slavery and white supremacy as primary economic and social systems, and they lost.

While the lost the war, they have been adamantly determined to win the peace. And, to our disgrace, it is working. It should not. The war was bloody and hard and devastating to all involved. It was glorified in its time by the Union as candidates waved the bloody flag as they ran for office. And it has been rewritten by the remnants of the Confederacy who pretend it was some kind of noble fight – a stand your ground kind of war. It was not. It was, in the end, a war about slavery, subjugation, and white supremacy. The war determined that these repulsive constructs should not – and would no longer – be the backbone of our economy and our collective sense of dignity and humanity. Let us never, ever forget that.

So, that is the background of how John Bingham – with much help – crafted the Fourteenth Amendment with its opening salvo, "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."

Here is the loose translation for the uninitiated: We beat you. We won. Deal with it. This is war reparations.

It is truly awful that i this is a question being discussed in the Supreme Court of the United States 158 years later, but here we are. The language states that citizenship belongs to those naturalized and those born here. In its time this included the children of those brought in chains through the brutality of the slave trade. It appears that everyone agrees about that. The "lawful" transatlantic slave trade ended, as per the Constitution, in 1808.

Does anyone believe that the last ship of enslaved persons arrived then? No, of course not. As slavery is depraved and repulsive, so too were its purveyors. They smuggled in people for decades, actually until 1861 when the Union blockaded the Southern ports. Those people came “unlawfully”. That is, they were not permitted to be here under United States law; their presence made them scofflaws. Yet, they were enslaved and treated brutally. Their children, too. All of these people became citizens as per right in 1868. The folks who wrote the Amendment knew all about the horrors of the continuing transatlantic slave trade and the Caribbean smugglers. They knew people were carried to the United States long after federal law prohibited the practice.

Once the war ended and the Union won, the right of citizenship was granted to those living, and the descendants of, the “lawful” transatlantic slave trade, those smuggled in through nefarious means after the “lawful importation” ended, their descendants, the children born from rape and degradation of their parents by people claiming to own them regardless of how they were "imported" into this country, and any other people who were in bondage or indentured servitude at the time of the ratification of the Fourteenth Amendment regardless of how they ended up here. Period.

And so, if people are born to those in this country seeking asylum or who evaded laws about entry or somehow in violation of immigration laws (which really should be updated annually or every few years to keep pace with the reality of the world...and enforcement should be placed back into the Department of Labor, but I digress...) - those born here - regardless of the status of their parents - are citizens. It has ever been thus and thus it should remain.

The issue of restriction of birthright citizenship is not a serious question and not one the SCOTUS should even be addressing. Birthright citizenship is a constitutional right. It belongs to anyone born here regardless of who their parents were or their immigration status at the time of their birth. Any other musings are simply jingoistic nonsense which would be laughable to the authors of the Fourteenth Amendment. Those were noble men who fought for the end of slavery and for the dignity of humanity - some for their entire lives. Not only does it diminish the meaning and power of the Constitution, the question is an insult to every single drop of blood shed on the battlefields of this country as it fought for its future.

That future is now. It is us. And, it would do us well to stop quibbling over idiocy, stop sinking deeper into cruelty and dishonor, and start acting like the leaders of a free world.