It's perhaps a short walk from trashing the legacy of Thurgood Marshall during the Elena Kagan confirmation hearings to the Republican leadership's latest affront to the civil rights history of this country. But the push to open hearings on the 14th Amendment, in order to challenge the birthright-citizenship provisions of the landmark Civil War amendment, marks a new low.
The rationale of senators calling for hearings on the 14th Amendment is supposedly a concern about illegal immigration. According to Senator Graham and other Republican leaders, undocumented workers come to the U.S. and have babies — anchor babies, they say — in order to provide a basis for enabling the parent to remain in the country legally. It's called "drop and leave," Senator Graham said recently, seemingly unmindful of the internal illogic of this mysterious new term. Either illegal immigrants are having babies and then using their newly born citizen children to remain in the country, or they're having babies and then leaving. It can't be both. But no matter — the term "drop and leave" (like, say, "welfare queen") is sufficiently catchy and crude to capture the imagination of the constituency that unfortunately too many Republican leaders are courting. No empirical data have been proferred to suggest that this "anchor baby" emergency exists, or to document how U.S. interests are harmed by guaranteeing citizenship to any person born on U.S. soil.
The prospect of policing maternity wards to identify and deport newborns of undocumented immigrant parents makes the idea of repealing the birthright-citizenship provisions of the 14th Amendment repugnant enough. What's been most galling about the cavalier suggestion that we "re-examine" or "overturn" those provisions is the failure of any of these re-examiners to mention the critical historical importance of the birthright-citizenship provisions of the 14th Amendment to African-American citizenship.
While the 13th Amendment, ratified in 1865, outlawed slavery in the United States, it was the 14th Amendment that ensured black citizenship when it was ratified in 1868. In Dred Scott v. Sandford (1850), the Supreme Court, led by Chief Justice Roger Taney, did more than ensure that a slave who entered free territory could not become free. Justice Taney went even further and held that no blacks — whether slave or free — could be citizens of the United States. In one fell swoop, the Court divested even free blacks of citizenship.
Thus, it wasn't enough to abolish slavery after the Civil War. Nor would it have been enough to grant citizenship to former slaves. Instead, the 14th Amendment's birthright-citizenship provision overturned Dred Scott by guaranteeing citizenship to all born on U.S. soil, dismantling Justice Taney's thesis that descendants of black slaves could never be citizens. There are, of course, scores of Supreme Court decisions that have since affirmed the citizenship rights of blacks in the U.S. But the decisions of a Supreme Court must be grounded in provisions of the Constitution. The historical significance of the birthright provision to black citizenship cannot be overstated. Any attempt to "re-examine" this provision, especially to address a set of concerns about immigration that could easily be handled by a Congress willing to put the interests of the country ahead of political gamesmanship, should be of concern to all Americans.
Whether you think the Constitution is living or dead, it is a constitution. It's not a statute, a municipal regulation or a Senate resolution. The provisions of the Constitution are meant to withstand time, changes in successive congresses and new presidents. It's even meant to survive the contentious and ugly partisanship of 21st-century politics. The refusal of Congress to come together and work to constructively address problems with illegal immigration and the status of undocumented workers is not a reason to revisit the 14th Amendment. How much lower can we go?
Sherrilyn Ifill, who teaches at the University of Maryland School of Law, covers legal issues for The Root.