|
 |
 |
NOW THAT WE’VE COMPLETED our celebration of America’s 250th birthday it’s time to prepare for the 300th—the tricentennial. I will not live to see it but I hope the nation will.
At least, I hope a certain kind of America will celebrate its 300th year—one that has regained its moral equilibrium and turned its back resoundingly on illiberalism in all its ugly forms. If the United States does not reverse its current retreat from the principles and traditions that ennobled it, if it becomes the kind of predatory, grubby, and aggressive nation that Donald Trump champions, or if it becomes the socialist shambles that a growing number on the left envision, then it will not deserve to celebrate a tricentennial.
How do we find our footing in the face of these challenges to liberalism? Well, the Supreme Court just helped us. Though the Court has done its share to deform our constitutional structure recently, it also gave us a gift for the 250th anniversary of the Declaration. That gift was the birthright citizenship case, Trump v. Barbara. Yes, it would have been more bracing if the Court’s decision had been 9–0. But on the key concepts, the majority affirmed a principle that is foundational to our republic: equality. And by affirming that citizenship belongs to (nearly) every child born on American soil, the Court also tipped the scales on another argument currently roiling our republic, namely whether we are a creedal nation or one of blood and soil.
Despite the claims of anti-immigrant fanatics, the legal basis of birthright citizenship has hardly been contested in American history. As Chief Justice John Roberts’s majority opinion noted, the practice was embedded in common law and then codified in the Fourteenth Amendment. Neither politicians nor legal scholars thought the amendment’s phrase “subject to the jurisdiction thereof” was ambiguous. It excluded only the children of diplomats, children born to invading soldiers (thankfully not a big problem), and certain native tribes. The Court affirmed that interpretation in its 1898 Wong Kim Ark decision.
Five of the six justices who voted to strike down Trump’s executive order ending birthright citizenship last week did so on constitutional grounds.¹ Yet we live in an age of optional realities, so the president, perhaps not understanding how the Constitution works, posted that Republicans could “easily” reverse the Supreme Court’s decision “through Legislation. . . . No long and unwieldy Constitutional Amendment is necessary!” Speaker Mike Johnson, who may understand how the Constitution works but is required by his Trump servitude to pretend otherwise, said that he was very disappointed in the ruling and that “we’ll have to deal with it as Congress.”
That’s not how this works. Once the Supreme Court rules on the constitutionality of a matter, that’s the final word. It takes it out of the hands of the elected legislatures. Remember all the hullabaloo about Roe v. Wade? You can look it up. The Court could change its mind in future years (as it did in the Dobbs decision), or Congress and the states could amend the Constitution. But ordinary legislation? No.
BY REAFFIRMING BIRTHRIGHT CITIZENSHIP, the Court upheld a pillar of equality in America. We are not guaranteed equality of outcomes, but we are all equal citizens. That is part of what the Revolutionary War achieved. It overturned centuries of deference, subordination, and caste to create a new republic based on equality. While it’s true that only land-owning white males were initially counted for voting, the ideas the revolution spawned made the extension of rights almost inevitable. As the late historian Gordon Wood put it:
Equality was in fact the most radical and most powerful ideological force let loose in the Revolution. . . . Once invoked, the idea of equality could not be stopped, and it tore through American society and culture with awesome power. It became what Herman Melville called “the great God absolute! The centre and circumference of all democracy!”
Before the revolution, students were instructed in how to bow to upperclassmen and professors, church pews were assigned “on the basis of family heads’ age and social position,” and land was inherited by primogeniture. Post-revolution, all of that changed. Hand-shaking, between men on equal footing, replaced bowing. Cap-doffing went out of fashion, and many other signifiers of rank and position were eliminated. The Constitution decreed that, “No Title of Nobility shall be granted by the United States” nor by any state.
Birthright citizenship is a constitutive part of this democratic philosophy.
Think about what the United States without birthright citizenship would look like. What is the bedrock upon which our citizenship would rest? Would it be race, religion, ethnic background, family history, wealth, or some other criterion? JD Vance is already flirting with hierarchies of Americanness. He has referred often to the seven generations of his ancestors who are buried in Kentucky. “Now that’s not just an idea, my friends,” he insists, “that is a homeland.”
Vance adds that he looks forward to resting there himself when his time comes, as will his children. But his children are the product of a marriage between himself and the daughter of recent immigrants. Her ancestors are buried in India. Is that their “homeland”? Are his children less American than he?
Abraham Lincoln would like a word. In a July 10, 1858 speech, he said:
We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this