Republican Sen. Graham plans to alter the Amendment that gave African Americans citizenship rights

The rationale of senators calling for hearings on the 14th Amendment is supposedly a concern about illegal immigration. According to Senator Graham and other Republican leaders, undocumented workers come to the U.S. and have babies — anchor babies, they say — in order to provide a basis for enabling the parent to remain in the country legally. It’s called “drop and leave,” Senator Graham said recently, seemingly unmindful of the internal illogic of this mysterious new term.

Either illegal immigrants are having babies and then using their newly born citizen children to remain in the country, or they’re having babies and then leaving. It can’t be both. But no matter — the term “drop and leave” (like, say, “welfare queen”) is sufficiently catchy and crude to capture the imagination of the constituency that unfortunately too many Republican leaders are courting. No empirical data have been proffered to suggest that this “anchor baby” emergency exists, or to document how U.S. interests are harmed by guaranteeing citizenship to any person born on U.S. soil.

The prospect of policing maternity wards to identify and deport newborns of undocumented immigrant parents makes the idea of repealing the birthright-citizenship provisions of the 14th Amendment repugnant enough. What’s been most galling about the cavalier suggestion that we “re-examine” or “overturn” those provisions is the failure of any of these re-examiners to mention the critical historical importance of the birthright-citizenship provisions of the 14th Amendment to African-American citizenship.

While the 13th Amendment, ratified in 1865, outlawed slavery in the United States, it was the 14th Amendment that ensured black citizenship when it was ratified in 1868. In Dred Scott v. Sandford (1850), the Supreme Court, led by Chief Justice Roger Taney, did more than ensure that a slave who entered free territory could not become free. Justice Taney went even further and held that no blacks — whether slave or free — could be citizens of the United States. In one fell swoop, the Court divested even free blacks of citizenship.

Thus, it wasn’t enough to abolish slavery after the Civil War. Nor would it have been enough to grant citizenship to former slaves. Instead, the 14th Amendment’s birthright-citizenship provision overturned Dred Scott by guaranteeing citizenship to all born on U.S. soil, dismantling Justice Taney’s thesis that descendants of black slaves could never be citizens. There are, of course, scores of Supreme Court decisions that have since affirmed the citizenship rights of blacks in the U.S. But the decisions of a Supreme Court must be grounded in provisions of the Constitution.

The historical significance of the birthright provision to black citizenship cannot be overstated. Any attempt to “re-examine” this provision, especially to address a set of concerns about immigration that could easily be handled by a Congress willing to put the interests of the country ahead of political gamesmanship, should be of concern to all Americans.

written by Sherrilyn Ifill, who teaches at the University of Maryland School of Law, covers legal issues for The Root.


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