America cannot rewrite birthright

As we await the Supreme Court ruling in Trump, et al v. CASA, Inc. et al., which is focused on the subtending procedural issue of the legal efficacy of nationwide injunctions while the substantive foundational issue of Birthright Citizenship waits in the wings, here's a primer on the history and purpose of the 14^th Amendment.

Introduction

I watched and listened to with great interest the oral argument before the Supreme Court in Trump, et al v. CASA, Inc. et al, held on May 15, 2025, wherein counsel for the President of the United States of America argued his rational for the need for a partial stay of the nationwide preliminary injunction issued by the US District Court for the District of Maryland, and two other related courts and cases concerning the president's Jan. 20, 2025 Executive Order (EO) denying birthright citizenship to certain classes of children born on US soil and several states' and a nonprofit entity' challenges to both the application to lift the stay as well as the constitutionality of the EO at issue.  I, like many , believe the president's focus on litigating the validity of the nationwide injunction is but a smoke screen and the mean through which he hopes to evade litigating the real issue hand: the constitutionality of his EO, with the goal of obtaining the relief that will cause the individuals targeted for harm to have to fight for their constitutional rights on a case-by-case, state-by-state basis when many, if not most lack the resources to do so on an individual claimant basis.  A ruling in favor of the president on the stay will likely effectively be a ruling on the merits, at least for some of the targeted classes of children.

So, while we await the Supreme Court's decision, the purpose of this essay is to help us all focus and keep our eyes on the prize: Upholding the letter and intent of all of the clauses of the 14^th Amendment as it faces a full-court press by the Trump Administration.

What is the 14^th Amendment and why is it so important in today's toxic political environment? 

During America's post-Revolution, new nation formation and expansion periods, between the 1780s-1860s, Black Americans in slave holding states continued to be not thought of as true human beings, let alone citizens of this great land, but were instead classified as chattel - the property of their owners. However, not all states allowed slavery; some of the United States were designated "free states" in accord with a couple of Congressionally-mandated Compromises on the subject of slavery, including the Compromise of 1820 (aka, the Missouri Compromise), see, https://en.wikipedia.org/wiki/Missouri_Compromise) that admitted Missouri as a slave state and Maine as a non-slave state at the same time, so as not to upset the delicate balance between slave and free states in the nation. It also outlawed slavery above the 36º 30' latitude in the remainder of the Louisiana Territory. See, https://history.state.gov/milestones/1801-1829/louisiana-purchase. This provision held for 34 years, until it was repealed by the Kansas-Nebraska Act of 1854. See, https://www.archives.gov/milestone-documents/kansas-nebraska-act. And the Compromise of 1850 was composed of five statutes enacted in September of 1850. See, https://guides.loc.gov/compromise-1850. These Acts called for the admission of California as a "free state," provided for a territorial government for Utah and New Mexico, established a boundary between Texas and the United States, called for the abolition of slave trade in Washington, D.C., and amended the Fugitive Slave Act to add several new clauses, including mandating that both federal and local law enforcement in all states (both "slave" and "free") were required to enforce the legislation and arrest suspected fugitive slaves. In addition, anyone aiding an enslaved person escape from bondage was subject to imprisonment and a fine. The enforcement of these strict requirements angered many in the North and abolitionists everywhere, further advancing the nation towards the Civil War.

In 1857, the Supreme Court ruled that the Missouri Compromise was unconstitutional in its Dred Scott v. Sandford decision.

"In this ruling, the U.S. Supreme Court stated that enslaved people were not citizens of the United States and, therefore, could not expect any protection from the federal government or the courts. The opinion also stated that Congress had no authority to ban slavery from a federal territory.

The facts of the Case: "In 1846, an enslaved Black man named Dred Scott and his wife, Harriet, sued for their freedom in St. Louis Circuit Court. They claimed that they were free due to their residence in a free territory where slavery was prohibited.

"The odds were in their favor. They had lived with their enslaver, an army surgeon, at Fort Snelling, then in the free Territory of Wisconsin. The Scotts' freedom could be established on the grounds that they had been held in bondage for extended periods in a free territory and were then returned to a slave state. Courts had ruled this way in the past.

"However, what appeared to be a straightforward lawsuit between two private parties became an 11-year legal struggle that culminated in one of the most notorious decisions ever issued by the United States Supreme Court. Scott lost his case, which worked its way through the Missouri state courts; he then filed a new federal suit, which ultimately reached the Supreme Court.

"On its way to the Supreme Court, the Dred Scott case grew in scope and significance as slavery became the single most explosive issue in American politics. By the time the case reached the High Court, it had come to have enormous political implications for the entire nation.

"On March 6, 1857, Chief Justice Roger B. Taney read the majority opinion of the Court, which stated that enslaved people were not citizens of the United States and, therefore, could not expect any protection from the federal government or the courts."

Specially, in his ruling Chief Justice Taney stated: "The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea [Black persons] in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power, and the government might choose to grant them."

Chief Justice Taney further stated: "They [Black persons] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern; without doubting for a moment the correctness of this opinion."

The opinion also stated that Congress had no authority to ban slavery from federal territory. This decision, strongly opposed by the Republican Party, moved the nation a few steps closer to the Civil War, and is considered by many legal scholars to be the worst decision ever rendered by the Supreme Court. As such, after the conclusion of the hostilities between the states, it was overturned by two of the three Civil War/Reconstruction Amendments, the 13^th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be citizens of the United States.

What's up with birthright citizenship?

Turning now to the 14th Amendment--passed by Congress on June 13, 1866, and ratified on July 9, 1868--it contains the birthright citizenship clause now under renewed scrutiny due to Trump's Executive Order, declaring 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." See, https://constitutioncenter.org/the-constitution/drafting-table/item/amendment-xiv.

So, just what does "subject to the jurisdiction thereof" really mean? According to Professor John C. Harrison, James Madison Distinguished Professor of Law at the University of Virgina School of Law, ".... Persons born or naturalized in the United States are citizens only if they are subject to its jurisdiction. That exception applies to individuals present in the United States over whom the United States does not exercise full territorial prescriptive or adjudicatory jurisdiction because of its relations with another sovereign or quasi-sovereign such as an Indian tribe. (Prescriptive jurisdiction is a sovereign's authority to prescribe legal rules. Adjudicatory jurisdiction is the authority of a sovereign's courts to make persons parties to cases before them.) When the Fourteenth Amendment was adopted, the leading examples of people present in the United States but not fully subject to its territorial jurisdiction were foreign diplomats, who enjoyed diplomatic immunity under international law, and those members of Indian tribes whose relations with their tribes limited the authority the United States exercised with respect to them. See,  https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/700.

In sum, the offspring of diplomates or hostile occupying military forces, who by international law remain under the jurisdiction of the sovereigns of their parents' homeland every minute they set foot on American soil, along with Native Americans under the jurisdiction of their Tribes, were the only two classes of people born in the US who were not automatically citizens. And while the offspring of diplomats born here continue to be non-citizens, on June 2, 1924, President Calvin Coolidge signed into law the Indian Citizenship Act, which marked the end of a long debate and struggle, at a federal level, providing full birthright citizenship for American Indians. See, https://narf.org/the-indian-citizenship-act-at-100-years-old/.

Another important case on the subject is United States v. Wong Kim Ark, (1898):  The facts of the case:  Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens. At age 21, he took a trip to China to visit his parents. When he returned to the United States, he was denied entry on the ground that he was not a U.S. citizen. So, he sued to protect his rights and his case worked itself up to the Supreme Court, which had before it a single question: "Namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of the opinion that the question must be answered in the affirmative."

So, I submit that this 1898 case completely shuts down the Trump administration's months-old attempt to strip the citizenship of Black and brown, and other children of undocumented immigrants of color. It seems to me that some courts--perhaps even the highest in the land--may be willing to contort longstanding legal principles by entertaining this procedural end-run around the 14th Amendment, paving the way for yet another outcome-driven decision that disregards well-established, binding precedent. We'll have to wait and see whether the Supreme Court chooses procedural form over substantive constitutional fidelity. I hope it does not.