This was one of the Reconstruction amendments that was ratified following the Civil War to guarantee citizenship to the four million African Americans who were freed from slavery by the Thirteenth Amendment (not the so-called “Emancipation Proclamation”, which did not apply to six states in the Union where slavery was allowed to persist throughout the war: New Jersey, Delaware, Maryland, West Virginia, Kentucky, and Missouri). The definition of citizenship in the Fourteenth Amendment was necessary to overturn the Supreme Court’s ruling in the Dredd Scott v. Sanford decision that Blacks (including free Blacks) were not—and were never intended to be—citizens of the United States, and consequently “had no rights which the white man was bound to respect” [3]

            The Supreme Court affirmed birthright citizenship in 1898 in the U.S. v. Wong Kim Ark case [4], which held that the 1882 Chinese Exclusion Act [5] did not apply to Wong because he was born in San Francisco in 1873 to immigrant parents (significantly, his mother was allowed to immigrate to the U.S. prior to the passage of the Page Act in 1875 that prohibited the immigration of East Asian women [6]), and thus a natural-born U.S. citizen.

            So why should Black people care about any changes to birthright citizenship? Prefatorily, I note that despite Donald Trump’s intention to issue an executive order curtailing birthright citizenship rights, the Supreme Court in U.S. v. Wong Kim Ark clearly stated that the Constitution gives Congress “the power to establish an uniform rule of naturalization” (at 701), not the executive. Further, Justice Hugo Black in his concurrence in Nishikawa v. Dulles stated, “What the Constitution has conferred, neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away.” [7] Thus, the ostensible order would be illegal and most likely challenged in the courts [8], ultimately arriving at the Supreme Court for adjudication. But presuming the current Supreme Court were to uphold such an executive order, even a narrowly constructed reinterpretation of the Fourteenth Amendment would necessarily change the bases for citizenship in the United States, which begs the question: what would be the criteria for U.S. citizenship? It is the potential answers to that question that concern me.

             The 1790 Naturalization Act limited U.S. citizenship to Whites only: “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof ” [9] Indigenous Americans were not granted citizenship until 1924. [10] The Chinese Exclusion Act wasn’t repealed until 1943. Similarly, exclusion of Asians from India and the Philippines didn’t end until 1952. [11] What is to prevent the current Supreme Court from authorizing Congress to reconfigure birthright citizenship along these old lines? Could they restore and extend Roger Brooks Taney’s decision in Dredd Scott V. Sanford to all people in the U.S. who aren’t White? Could they repeal the 1924 Indian Citizenship Act? Since we would no longer have the protections of citizenship, would we be subject to the extreme vetting, roundup, and deportation called for in Project 2025? [12] Or with the ostensible closing of the border and deportation of millions of undocumented immigrants, would we—now no longer citizens—be forced to take on those jobs that the undocumented currently do and U.S. citizens don’t want to do? Could they close off admissions to all higher education institutions to non-Whites by extending the ban on race as a category for admissions to a ban on access to higher education for non-citizens? Or possibly reverse Plyler v. Doe, which would allow states to bar the children of undocumented immigrants from public schools? [13]

Significantly, Thomas did not include Loving v. Virginia, which struck down state laws forbidding interracial marriage, more than likely because he is in one. [15] At least one member of the Republican party, however, did not have any reservations about including Loving for reconsideration and return to the states. [16]