Dear Colleagues, this was inspired by last week’s Black Space meeting. I’d be grateful for your thoughts/comments.
 
            In an Agenda47 campaign video, Donald Trump pledged to issue an executive order on the first day of his administration that would bar the children of undocumented immigrants from receiving natural-born U.S. citizenship status.
 
“As has been laid out by many scholars [sic], this current policy is based on a historical myth [sic] and a willful misinterpretation of the law by the open border advocates [sic]. . .As part of my plan to secure the border, on day one of my new term in office I will sign an executive order making clear to federal agencies that under the correct interpretation of the law [sic] going forward the future children of illegal aliens [sic] will not receive automatic U.S. citizenship. . . .My order will also end their unfair practice known as birth tourism. . . . At least one parent will have to be a citizen or a legal resident in order to qualify.” [1]
 
Although he views this as an immigration issue, Black people need to pay attention because the issue at hand is birthright citizenship, which has everything to do with us.

            I’m not a lawyer, and I don’t want to write an extended exegesis on the history of birthright citizenship. The main point of that history, however, is that birthright citizenship was enshrined in the Fourteenth Amendment to the Constitution:
 
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [2]
 

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]

 

            The current Supreme Court has shown itself hostile to the principle of stare decisis, or respect for established judicial precedent. Thus, the possibility that they could review, reinterpret, and/or reverse Wong Kim Ark is not farfetched. Equally troubling are the implications stemming from the 2022 Dobbs v. Jackson Women’s Health Organization decision. [14] In his concurrence, Clarence Thomas argued that
 
Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. . . . in future cases, we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”. . . we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
 

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]

 

            One of the key principles underlying birthright citizenship is ius soli, or right of the soil, which privileges place of birth as the basis for citizenship. The dissenters in Wong Kim Ark, however, argued in favor of the principle of ius sanguinis, or right of blood, which privileges one’s parentage as the basis for citizenship. A shift to ius sanguinis, as Trump’s executive order would effect, would open the door to a return to the concept of partus sequitur ventrem, or the doctrine that a child’s status follows the status of its mother. This is the doctrine that was enshrined into law by the Virginia colonial legislature in 1662 that effectively allowed White slave holders to rape their enslaved Black female and claim any children they bore as chattel property. [17] If we lose birthright citizenship based on birth in the territorial United States, as constructed by the Fourteenth Amendment and based on centuries of legal precedent dating back to English Common Law, what protections and legal recourse would Black women have against the sexual depredations of White men? This would effectively take us back not only to the days of Jim Crow where Blacks were second class citizens, but the time when “had no rights which the white man was bound to respect.”
 
            And so, Black folk, I say be careful what you vote for because you might get it. And a whole lot more.
 
Peace,
Nick
 
Nicholas M. Creary, Ph.D.
Institutional Justice, Equity, Diversity, & Inclusion (JEDI) Officer
Middlebury Institute of International Studies 
217 McCone Bldg., 499 Pierce St. 
Monterey, CA 93940
831-647-3582