14th Amendment and Birthright Citizenship

The following contribution was submitted to Workers Vanguard by Spartacist League Central Committee member Reuben Samuels.

The Supreme Court under Justice Roger Taney (1836-1864), known for the 1857 Dred Scott decision, has rightly been branded one of the most reactionary in U.S. history. That notorious decision formalized a racial definition of citizenship by declaring blacks “had no rights which the white man was bound to respect.” It sought to make the law of the lash the law of the entire country. Instead, it hastened the Civil War that crushed slavery and would render the Scott decision moot. When that pro-slavery Taney court got in the way of pursuing that war, President Lincoln defied it. No court, whatever its composition, could suppress the inevitable conflict between the two social systems—Northern capitalism and Southern chattel slavery—upon which this nation was founded.

To ensure Northern victory over the Confederacy, emancipation was not enough. Citizenship rights had to be extended to the black freedmen; and not only to them, but to anyone naturalized or born here, as codified in the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868. (Male suffrage followed in the Fifteenth Amendment in 1870.) But the language of the Fourteenth Amendment went further, granting protections to any person: “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.”

Based on the Amendment’s “due process” and “equal protection” clauses, civil rights protections were extended nationwide to “persons of Mexican descent” in the 1954 Hernandez v. Texas decision. Under the same Earl Warren Court (1953-1969), two weeks later “separate but equal” school segregation was struck down in Brown v. Board of Education. In 1982, the Supreme Court returned again to the Fourteenth Amendment in the case of Plyler v. Doe to strike down a Texas statute that denied K-12 educational funding to undocumented immigrant children. These decisions were living testament to the fact that black freedom and immigrant rights go hand in hand. They, along with other partial legal gains, came in the context of social struggle. As struggle receded, these gains were followed by major reversals.

The Thirteenth, Fourteenth and Fifteenth Amendments, known as the Reconstruction Amendments of 1865-1870, were a product of the most equalitarian period in American history. They also demonstrate the limits of bourgeois democracy. Immediately after the Civil War, black freedmen were denied land and forced back onto the plantation as sharecroppers. The Thirteenth Amendment abolished involuntary servitude and slavery except “as a punishment for crime whereof the party shall have been duly convicted,” which would serve as a basis for virtual slave labor in the prisons. The “due process” clause of the Fourteenth Amendment contains its own exception. In declaring that no state shall “deprive any person of life, liberty, or property, without due process of law,” it sanctions states to deprive people of precisely those things with due process. The Amendment provided no protection for the 120,000 Japanese Americans, at least two-thirds of whom were citizens, interned during World War II. Nor does the Fourteenth Amendment today protect the tens of thousands of immigrants interned in this country’s detention centers for having sought refuge from the ravages of U.S. imperialism in their homelands.

Nevertheless, despite its limitations, the Fourteenth Amendment continues to be the legal bedrock for many bourgeois-democratic rights won by workers and the oppressed, including abortion and gay rights, demonstrating the centrality of black emancipation to the struggles of all the oppressed and a workers’ reconstruction of this benighted land.

Fostered by the decades-long bipartisan assault on immigrant rights, Trump’s brash attack on birthright citizenship threatens to resurrect the race-based citizenship it took a civil war to abolish. Our demand for full citizenship rights for all immigrants has as its foundation the emancipatory gains of that war, though it will take a third American revolution, a proletarian revolution, to achieve complete equality.