The Assault On The 14th Amendment Puts Everyone At Risk
It's not just about immigration, no matter what the Administration says.
The Supreme Court announced today that it would hear oral arguments in the Trump administration’s push to end birthright citizenship via executive order. As is the case with so many other actions by the administration, it is being couched as an enforcement measure against illegal immigration. As is also the case with this administration, they’re lying to your face.
The Fourteenth Amendment to the Constitution is part of the group of amendments colloquially known as the Reconstruction Amendments. The Thirteenth Amendment abolished slavery (with a twist, as decades of incarcerated prisoners have learned). The Fourteenth granted birthright citizenship, extended the federal rights of citizens to all states (fixing a loophole in the original drafting caused by the slavery compromises), proscribed penalties for denying the right to vote to any man twenty-one years or older, barred the denial of the validity of United States government debt, barred insurrectionists from ever holding public office, and gave Congress the ability to enforce those all of the above through appropriate legislation. The Fifteenth, to erase all doubt, specifically enumerated the right of black Americans to vote. For reference as I go on, I am footnoting the entire text of the Fourteenth Amendment.1
Because the Amendment was so far-reaching, it has come to encompass a large number of civil rights for Americans, and is known by most people for the Equal Protection Clause. While the Roberts Court has whittled away at the Amendment through rulings which defy logic (and legal precedent!) over the past decade, it is still the law, and one part that has not been touched is Section 1’s granting of birthright citizenship. That is, until now, where as part of an assault against immigration, the Trump Administration is trying to declare that birthright citizenship does not exist for those people who are born here to parents who lack citizenship.
The case itself should be a slam dunk for those challenging the order. The text of the Amendment only includes a single exception regarding jurisdiction, which was inserted to ensure no issues would arise with diplomats of foreign nations serving in America. This is why the caveat reads “and subject to the jurisdiction thereof.” Diplomats have immunity against the laws of America, and can only be expelled from the country, unless there are extraordinary circumstances in which the country which the diplomat serves withdraws the protection of immunity. For example, if a consular official at the French embassy gets stupidly drunk and runs over a child with their car while drunk, France could choose to withdraw that official’s immunity so they could be tried for vehicular manslaughter. These cases are rare, however.
There is no evidence whatsoever, given that the point of Section 1 was to grant both citizenship and civil rights to the recently freed slaves, that Congress or the state legislatures ever intended for any other exceptions to be made. They understood that an unambiguous declaration of citizenship was necessary to prevent states from performing end runs around the law (not that it stopped the South in the end, but the drafters surely tried their best).
Trump’s argument is that illegal immigrants aren’t subject to our jurisdiction, and therefore their children, if born here, do not receive citizenship. The flaw in his argument is that if that were true, we could not arrest them for any crimes at all, which is not the case. ICE detains immigrants. Police arrest immigrants who commit crimes. Immigrants have social security numbers that allow them to work in this country, while being exempted from receiving government benefits (contrary to the propaganda of Fox News, undocumented workers do not get disability, Social Security old age, Medicare, or any other such benefits). If all of the above is true (and it is), then by definition, they are subject to our jurisdiction, and their children are citizens.
As I stated above, though, there’s no guarantee that this particular set of justices will agree with that. One of the hallmarks of the Supreme Court under John Roberts has been an absolute mangling of the definition of words. The same six/nine justices who wouldn’t let Joe Biden cancel all student loans, and allowed a single district court judge in Texas (the loathsome Matthew Kaczmarek) to virtually dictate border policy for nearly a full year during 2023, will suddenly show restraint when cases involving Donald Trump come before them. It can be fairly argued that this decision last year regarding Section 3 of the Fourteenth Amendment is why we’re currently trying to prevent a complete authoritarian dictatorship from engulfing America. The idea that the President can be immune from the law if his illegal actions are undertaken “as part of his official duties” turns everything we know about being equal under the law on its head. It is precisely that ruling that has allowed Trump to gleefully ignore a court order to return Kilmar Abrego Garcia to America from the El Salvador gulag he was dumped in.
Thursday afternoon, the Fourth Circuit Court of Appeals, with Reagan appointee Judge J.H. Wilkinson writing the opinion, got straight to the heart of what I wanted to say2. The reason that marginal groups, or people advocating for unpopular causes, are targeted first when those in power come for our rights is because they believe they can get away with it. And so many people, as I’ve seen right now amongst people I know in their social media posting, do indeed approve of this. They accept, without question, the specious claims of “gang members” and “illegal aliens” when the administration grabs people off the street, puts them in an unmarked van, ties them down in their seat on a flight, and drops them in El Salvador, a nation that we are paying to throw these people into a black hole. It’s why it’s the only area of Trump’s presidency with a net positive approval rating.
They support it because they think the administration is getting rid of bad people, and they cheer that ICE is getting rid of the “bad people” without going through a court. It is a direct result of our lack of civics education in America that the majority of voters do not understand the problem. Once due process is circumvented or outright ignored for any group of people, it then creates the precedent to do it for another group. ICE has frequently arrested people for being illegal immigrants that are, in fact, United States citizens. They did it earlier today, in fact. ICE has deported people that are citizens.
If the government can arrest you, throw you on a plane and dump you in another country without a court appearance, then there is nothing to stop them from doing it to anyone. Advocated a cause they don’t like? Whoops, not a citizen, go to El Salvador. “Wrong” ethnicity? Whoops, torture prison it is. Once they’re allowed to ignore the law, just once, they will keep doing it. That’s how authoritarianism works. That’s what fascists do. They push and push and push, and when there is not resistance, they barrel through the hole they’ve created. Trump is already talking about sending Americans to El Salvador, saying he’ll send “the worst of the worst,” but remember that he’s used that to describe everyone from anti-Musk protestors to Joe Biden. He thinks he has a secret loophole to the law: if DHS arrests and deports people before their families and lawyers can find out where they’re being held, then he can claim that he has no authority to bring them back. That’s the argument they’re making in the Garcia case, and because it’s not working, they’re now smearing him as a terrorist and MS-13 gang member in the media, trying to bring the pressure down, because they know they have to win to do what they really want.
The entire point of Trump running for President again in 2024 was to stay out of prison for his lawbreaking and to get revenge on everyone who opposed him. He is trying to shock and awe America into giving him power no president has ever had. He is unafraid of the courts, because he’s repeatedly been able to weasel out of trouble, and nearly half of the federal courts have been remade in his image. He believes that because he is doing what he thinks is best for America that the law does not apply. He is a narcissist and an abuser, and is abusing the rule of law, and the nation at large.
Because of this, because of the fact that Republicans are a cult of personality around Donald Trump, and because anyone trying to replace Trump failed miserably in the primaries, resistance is necessary. I’m not talking about The Resistance™, I’m talking about everyone raising their voices and making sure that Congress understands how utterly unacceptable we all find it to lose our rights in any way. Authoritarian power, once ceded, is damnably hard to take back. Ask Argentina, Brazil, Chile, Russia, Zimbabwe, hell, any Israeli leftist will tell you that Netanyahu is like a cockroach they can’t kill, aggregating more power each time he clings to the prime ministership. Ask Spain and Portugal. Ask France under De Gaulle.
Even Great Britain, despite the change in government from a right-wing party to a center-left party, has not seen its protest rights restored. The Metropolitan Police in London raided a Quaker church meeting to arrest peace activists on a mere suspicion of “illegal protest” being planned. Activists say that oppression is a part of life now, and that’s in a place that isn’t sending people to the gulag. Now, take that level of oppression and apply it here, where legal immigrants are being snatched off the street and threatened with deportation for writing an editorial in a university newspaper. Then give the president the power to send anyone who angers him to a gulag in another country without a court hearing, without any charges being filed, just gone. Give the president the right to determine if you’re still a citizen or not, because without birthright citizenship, anybody can be stripped of their rights.
The Declaration of Independence included amongst its charges levied at King George III the following:
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
For cutting off our Trade with all parts of the world
For imposing Taxes on us without our Consent
For depriving us in many cases, of the benefits of Trial by Jury
For transporting us beyond Seas to be tried for pretended offences
Do these things sound familiar? The creation of his special “task forces,” the tariffs imposing new taxes upon us and diminishing our trade, the abduction of people sent to a torture prison in another country without court hearings or trials…these are all reasons that we gave for establishing our independence from Great Britain. Now our own president, elected, is doing these things and too many people are shrugging, believing it doesn’t affect them. “We’re citizens, we’re not illegals.” If birthright citizenship becomes anything less than an absolute, there is nobody in this country who will be safe, I promise. A single stroke of a pen can render anyone stateless and subject to deportation at whim.
Rev. Martin Niemoller, he of the famous poem, has a central part of his life that is left out in his story. You see, Martin Niemoller was an early Nazi Party member, from 1924 all the way into the late 1930s. It was only when Hitler came for the Lutheran Church that Niemoller objected to his actions, refused to support it, and was subsequently thrown into Dachau. He survived, likely because he wasn’t Jewish, and then recanted his Nazi past, starting in 1946 by writing “First They Came For.”
I think it’s important we tell Niemoller’s whole story, that he wasn’t just a German pastor, but that he was an honest-to-God Nazi. Every MAGA diehard who believes that eroding civil rights won’t hurt them because they’re white, because they’re citizens, because they’re MAGA, they need to know. Martin Niemoller is proof positive that one’s race, citizenship, political affiliation, or personal loyalty to the authoritarian ruler does not matter, because unchecked power will always be in search of a new target.
14th Amendment to the United States Constitution
Section 1
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.
Section 2
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
"It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, WHAT ASSURANCE WILL THERE BE TOMORROW THAT IT WILL NOT DEPORT AMERICAN CITIZENS AND THEN DISCLAIM RESPONSIBILITY TO BRING THEM HOME? [all caps added by me to emphasize this]
And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8."