What the Birthright Case Is Really About

As the Supreme Court was preparing to hear oral arguments over the citizenship clause of the Fourteenth Amendment this week, President Trump made clear how he wanted the justices to rule.

“Birthright Citizenship is not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America. It is about the BABIES OF SLAVES!” Trump posted on his social network. He also insisted that only the U.S. has birthright citizenship, which is false.

Set aside for the moment that Trump has himself set up a program allowing rich people to pay for residency. The striking thing about this statement is how much it mirrors the panicked discourse of racists at the time the Fourteenth Amendment was adopted. When an incredulous Senator Edgar Cowan asked Senator Lyman Trumbull if the amendment would make citizens of the “children of Chinese and Gypsies born in this country,” Trumbull replied, “Undoubtedly.”

If the framers of the Fourteenth Amendment had wanted to specify that only the emancipated and their descendants would be eligible, they could have done that. When Trumbull originally wrote the bill that would establish birthright citizenship, according to the legal scholar Garrett Epps, he referred to people of “African descent”; he later broadened that language to declare that “all persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States.” The expansion of citizenship was consciously and deliberately not limited to “babies of slaves.”

When that exchange came up during oral arguments, the solicitor general, John Sauer, condemned Cowan as “racist.” But he sounded a similar note when he complained of “birth tourism” from China, saying, “We’re in a new world now.”

“Well, it’s a new world,” Chief Justice John Roberts replied. “It’s the same Constitution.”

If allowed to stand, Trump’s executive order would not only force all Americans to prove their citizenship at birth—it would in effect create a permanent, hereditary underclass of people, an estimated  6 million by 2050, whose only crime was having foreign parents. But as Roberts’s quip suggests, the legal case for Trump’s executive order is spurious. The Fourteenth Amendment is clear on the matter of citizenship—and no one has provided a plausible argument that the interpretation dating to its adoption is wrong. Nor was anyone seriously debating its meaning, until Trump promulgated his executive order and the right-wing legal movement did everything it could to make it seem respectable. Many of the sources the Trump administration can find to bolster its interpretation are from scientific racists or former Confederates that illustrate, by their very usage, the bad faith of the argument.

[Quinta Jurecic: Trump’s absurd citizenship arguments went nowhere]

So why was this case brought before the Court at all? For the same reason that Cowan’s racist invocation of “yellow peril” has survived to the present day, repeated in modern form by both the president and his solicitor general. Before the Civil War, America was a white man’s government. The Reconstruction Amendments were supposed to change that, to prevent not just the existence of masters and slaves but master classes and slave classes. Trump and those around him would like to change it all back. It is hardly surprising, then, that they would revive the same arguments against birthright citizenship that the framers heard in the 1860s.

The annexation of Texas and other territories in the West placed North and South on a collision course over slavery. One of slavery’s greatest champions, South Carolina Senator John C. Calhoun, feared that America might go even further and annex the rest of Mexico—an outcome he was certain would doom America forever. America had never “incorporated into the Union any but the Caucasian race,” Calhoun warned. “Can we incorporate a people so dissimilar from us in every respect—so little qualified for free and popular government—without certain destruction to our political institutions?”

For Calhoun, the answer was no. “Ours is the Government of the white man,” he insisted.

This was not the first or last time Calhoun prophesied apocalypse. In 1849, Calhoun and other southern representatives warned that if Black people in the North were enfranchised, white southerners would become slaves. “Once raised to an equality, they would become the fast political associates of the North, acting and voting with them on all questions, and by this political union between them, holding the white race at the South in complete subjection,” the declaration reads. “We would, in a word, change conditions with them—a degradation greater than has ever yet fallen to the lot of a free and enlightened people, and one from which we could not escape.”

Equality for Black people would be slavery for whites. The Constitution was never meant to apply to any but the white man. In the 1857 Dred Scott decision, Chief Justice Roger Taney adopted precisely this rationale, declaring that Black people were an “inferior class of beings, who had been subjugated by the dominant race,” and were “not intended to be included, under the word ‘citizens’ in the Constitution.”

This was the consensus of the Democratic Party at the time; one of the party’s 1860 presidential nominees, Stephen A. Douglas, argued that the Founders envisioned equality for “white men, men of European birth and European descent, and had no reference either to the negro, the savage Indians, the Fejee, the Malay, or any other inferior and degraded race.”

The outcome of the Civil War was supposed to put an end to the idea that the United States was a “government of the white man,” which Republican Representative John Bingham, one of the framers of the Fourteenth Amendment, called a “horrid blasphemy.” In 1867, Frederick Douglass tried to calm fears about Chinese immigration. America’s “greatness and grandeur,” he insisted, would “be found in the faithful application of the principle of perfect civil equality to the people of all races and of all creeds.” In 1868, the Fourteenth Amendment passed. As the historian Eric Foner has written, “putting birthright citizenship into the Constitution represented a dramatic repudiation of the powerful tradition of equating citizenship with whiteness.”

The Republicans had persevered in enshrining in the Constitution what Bingham called its own “divine feature”—the “recognition of the absolute equality before the law of all persons, whether citizens or strangers.”

Yet Calhoun lives.  

Calhoun’s theories have made a dramatic comeback with Trump, whose policies are guided by an unmistakable racial determinism. Trump warns that immigrants are “poisoning the blood of our country,” and that many immigrants have “bad genes,” telling a white Fox News host that “they are not exactly your genetic.”

Trump has focused his ire on immigrants from “third world” countries. He has virtually reimposed the eugenics-inspired immigration restrictions of the early 20th century, while instituting a Jim Crow–style system for refugees that prioritizes white South Africans. Trump’s reasoning for what he called a “permanent pause” in “third-world migration” was that instead of people from countries such as Norway or Sweden, we “always take people from Somalia,” which he called “disgusting.” The Democrats of Calhoun’s day, similarly, were not anti-immigrant, so long as only white people could naturalize. After all, the protection of slavery required white men, even those born in Dublin or Berlin.

In January, the Trump adviser Stephen Miller posted something even more revealing on X: “Plenty of countries in history have experimented with importing a foreign labor class. The West is the first and only civilization to import a foreign labor class that is granted full political rights.” Miller’s disgust here is not with the “importing” of a “foreign labor class.” It is with such a class having the same rights as he does.

Take away those rights, and you’ve reproduced a permanent, stateless, hereditary subclass of exploitable people who can never rise above their station. This was anathema to the Constitution of Bingham and Douglass, but Calhoun would approve—he considered slavery essential to preventing the “disorders and dangers” of class warfare, his frequent dark predictions of slave insurrections notwithstanding. Trump’s deployment of federal immigration agents to occupy racially diverse American cities—also denigrated as “third world” by some conservatives—has been guided by Miller, who has argued that repealing those racist immigration restrictions during the civil-rights movement ruined the country. Miller has also argued that “migrants and their descendants recreate the conditions, and terrors, of their broken homelands.” As I’ve noted before, no one has been more instrumental in creating the “conditions and terrors” of the repressive countries that immigrants have fled than Trump and Miller.

[Amanda L. Tyler: The Supreme Court has heard this one before]

All of these arguments echo Calhoun. The Constitution was not meant to apply to nonwhites, who lack the necessary capacity for self-government or appreciation of American traditions and institutions. Equality between whites and nonwhites is degradation. The incorporation of people “dissimilar from us in every respect” is “suicide.” A conservatism of this kind is not inevitable—it was not so long ago that, despite his personal racism, Ronald Reagan proudly insisted that “anyone, from any corner of the Earth, can come to live in America and become an American.”

“Mass deportation” will not be enough to make America white again. The Trump administration can cease enforcing anti-discrimination law, or use it to bolster de facto segregation. It can attempt to use its power to silence those who would defend diversity and equality. It can make life for the undocumented, and anyone perceived to be undocumented, as miserable as possible. But the Trump administration’s massive social-engineering project cannot succeed if the bulwark of nonracial citizenship stands. That is why Trump attended oral argument on Wednesday—the first president to do so—hoping to intimidate the justices into nullifying part of the Fourteenth Amendment.

The legal question before the Supreme Court is jarringly easy to answer. The more difficult question is what kind of country Americans want. After all, the Supreme Court’s nullification of the Reconstruction Amendments during the Jim Crow era was bolstered by popular sentiment among white people. What the Constitution says matters only so much as Americans decide to respect it—or hold accountable those who do not.

So the question is really: Do we want to be the America of John C. Calhoun or John Bingham? The America of Stephen A. Douglas or Frederick Douglass? Whatever the Supreme Court decides, it will not settle the question. Only the people can do that, one way or another.