Ramesh Ponnuru writes for National Review Online about a key issue the US Supreme Court will address in the weeks ahead. The outcome of the court’s deliberations could have a significant impact.
One of the most common arguments against the idea that the Constitution mandates birthright citizenship, even for the children of illegal immigrants, is that the relevant provision of the 14th Amendment was written to protect “the BABIES OF SLAVES” (to quote President Trump).
That was a principal purpose of the provision. But that doesn’t mean the provision doesn’t cover other children, too, as I wrote in a column about the issue a few months ago:
“The meaning of a law is, in the first place, not limited to what its authors mainly had in mind. The equal protection clause, also in the 14th Amendment, was motivated principally to ensure that state governments protected ex-slaves. Because it was written in general language, though, it extends to other groups and it doesn’t apply only to racial discrimination.”
The Trump administration is not challenging the idea that this part of the Constitution provides birthright citizenship to the children of almost all legal immigrants — which is to say, not just the children of slaves.
One reason the amendment was written without reference to the children of slaves: The people who wrote and ratified the 14th Amendment wanted also to protect black Americans who were born free in the U.S. These Americans had seen their rights and citizenship challenged for decades, with Dred Scott denying the possibility of citizenship to them. The drafters and ratifiers covered them by expressing a principle that went beyond the main example they had in mind, the children of freed slaves. So in figuring out how far the principle extends, it doesn’t get us very far to invoke that main example.
