Neither executive order nor legislation can end birthright citizenship, however, because of its origins in the 14th Amendment to the Constitution. The amendment was forged from the fire of the Civil War, as Republicans in Congress sought to protect the rights of former slaves against the discrimination and violence of former Confederates in the South. Trump’s and Graham’s comments are a stunning indication of how far the GOP has drifted from its inception as a party that sought to protect oppressed minorities and defend liberty.
No one envisioned the war would result in citizenship rights for former slaves, but war can often be unpredictable. After Abraham Lincoln’s election, the Southern states seceded from the Union in an attempt to protect the institution of slavery. Instead, the events of the war unexpectedly culminated in the destruction of the institution.
Slavery’s end was not the goal for many white Northerners, at least not at the start. Initially, Northerners volunteered to keep the Union together, not to destroy slavery. For the first year of the war, this was Lincoln’s stated intention, as well. “My paramount object in this struggle is to save the Union,” Lincoln wrote to the National Intelligencer in Washington, “and is not either to save or to destroy slavery.” But the war proved difficult to successfully prosecute, and Republicans, including Lincoln, were forced to embrace more radical measures to win.
Black slaves, on the other hand, immediately recognized that the Civil War was their best chance in a generation to achieve freedom, and they took extraordinary measures to undermine the Confederacy. Hundreds of thousands of slaves escaped their bondage and fled to Union lines. Somewhere between 500,000 and a million escaped during the war.
Moreover, everywhere Union soldiers penetrated in the South, they found aid from black slaves who served as scouts and informants. “The negroes are our only friends, and in two instances I owe my own safety to their faithfulness,” wrote one Union general to the secretary of war from Huntsville, Ala. By their actions, black slaves helped cripple the Confederacy.
In light of this aid, in 1862 Lincoln embraced emancipation as a means of bolstering the Union's cause. He followed that up in 1863 by allowing African Americans to serve as soldiers. African Americans in the North realized that shouldering a musket was their best chance to win equal rights. “Once let the black men get upon his person the brass letters, U.S.,” wrote Frederick Douglass, “let him get an eagle on his button, and a musket on his shoulder and bullets in his pocket, and there is no power on earth which can deny that he has earned the right to citizenship in the United States.”
The question of citizenship was at the forefront of the push for black rights, because the Supreme Court, in its 1857 decision in Dred Scott v. Sandford, had held that black people were not citizens and “had no rights which the white man was bound to respect.”
The Civil Rights Act of 1866 was designed to undo that ruling, as well as to further protect former slaves. This legislation declared anyone born in the United States, with the exception of Native Americans, as citizens with federally protected rights. Their progeny were also citizens with protected rights. Those protected rights included due process and equal protection of the law. One congressman called it “one of the most important bills ever presented to this House for its actions.”
The Civil Rights Act had further implications, as well. President Andrew Johnson, Lincoln’s successor, had decreed that Southerners could reenter the Union by holding state conventions and ratifying the 13th Amendment, essentially agreeing that slavery was over.
But Southern states that had done so began to elect state representatives and draft and pass laws governing the freedom of former slaves known collectively as black codes, which limited where African Americans could travel and denied them the right to bear arms, hold assemblies and live in certain areas. In 1866, deadly anti-black riots erupted in Memphis and New Orleans. White Southerners, many of them former Confederates, slaughtered African Americans in cold blood.
These developments galvanized the Northern public in favor of far harsher Reconstruction measures. “If the southern man had intended, as their one special and desirable aim, to inflame the public opinion of the North against them,” wrote Maine Rep. James G. Blaine, “they would have proceeded precisely as they did.”
But what Johnson did next ensured Republicans would unite behind black civil rights. In what historian Eric Foner describes as the “most disastrous miscalculation of his political career,” Johnson vetoed the Civil Rights Bill. Johnson’s veto united moderate and radical Republicans who had previously been divided over the bill. Now virtually all Republicans believed the Civil Rights Act was clearly right, that protection of the rights of former slaves had to be ensured. For the first time in American history, major legislation was passed by Congress over a president’s veto.
Republicans, however, recognized that any legislation could be undone by a future Democratic Congress and president. To make the bill permanent, they had to amend the Constitution. In 1866, Republicans proposed the 14th Amendment to the Constitution, which made the Civil Rights Act permanent. After a brutal two-year fight that included a president campaigning against his own party, and the introduction of the first articles of impeachment in the nation’s history, the 14th Amendment was ratified in 1868. This was an achievement of truly historic proportions.
Republicans intended for the birthright citizenship provision to ensure that African Americans' citizenship rights could not be abridged by racist Southerners. It was meant to protect the rights of former slaves who had just recently been liberated from bondage, as well as their children. In this way, both the current generation and the next would be the inheritors of freedom.
Now the leader of that same party has proposed to destroy the essence of the 14th Amendment. Trump’s comments underscore how far the Republican Party has drifted from its roots. Ending birthright citizenship would create two separate classes of people: those with federally protected rights and those without.
The progeny of noncitizens denied birthright citizenship would become an untouchable class, unable to progress and improve their lives. This is not only cruel but unwise. For instance, Middle Eastern immigrants denied equal rights in Western European countries are more prone to radicalization than those in the United States.
Furthermore, it is a fundamentally dangerous proposition to begin dismantling America’s capacious citizenship regime. What would stop Trump or future nativist presidents from one day expanding the scope of citizenship denials? The measure would target the children of undocumented immigrants today, but once the precedent is established, who knows whom it could target tomorrow. The 14th Amendment was designed to serve as shield against a federal government grasping at people’s rights. Birthright citizenship is a signature legislative achievement of the Republican Party, and Trump should continue to protect it, rather than attempt to undo it.