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What does the 14th Amendment say? -

The Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

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Undocumented immigrants -

In today’s America, this amendment is the subject of much debate. The rhetoric surrounding undocumented immigrants is also propelling a discussion on whether birthright citizenship should exist.

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Not the first time -

Yet, this isn’t the first time that this debate has been had among Americans. We’re not referring to Trump’s first term, but rather to post-slavery, nineteenth-century America. Pictured is General Lee surrendering, marking the end of the US Civil War. 

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Fate of millions -

Following the Civil War, Americans considered the fate of millions of formerly enslaved people. Should they be considered citizens? What about their descendants? Pictured is Dred Scott who pursued a case in the Supreme Court to be considered a citizen. 

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Birthright clause -

Adopted in 1868, the Fourteenth Amendment, establishing the birthright and naturalization clause to the Constitution, was put into law as part of the post-Civil War legal order.

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Contradictory laws on state level -

Many states had contradictory laws in place. Therefore, the Joint Committee on Reconstruction following the Civil War sought to clarify the law of the land to anyone born on US soil, which would necessarily override any state law in contradiction of such.

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Demographic threat -

For example, an opponent of the Fourteenth Amendment, Pennsylvania senator Edgar Cowan (pictured), stated that the amendment risked that the United States would be “overrun by another and a different race.”

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How the 14th Amendment came to be -

In Martha Jones' book 'Birthright Citizens,' Jones notes that the momentum of those considered non-citizens shaped the emergence of the Fourteenth Amendment, providing some food for thought in today’s context. Pictured is the famous abolitionist Fredrick Douglass.

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Generating local norms -

Jones depicted how the formerly enslaved behaved like citizens, even before they were considered such. What does this mean? According to Jones, they engaged in the “generation of local norms,” which ultimately was reflected in constitutional law.

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Non-citizens acting like citizens -

Using court archives and newspaper clips, Jones argues that this was done through people considered non-citizens acting like citizens, even before the right was established.

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Engaging in legal norms -

This means, these people engaged in all the legal norms granted to citizens, including making contracts, suing others, testifying in courts, pursuing debt relief, possessing arms, and worshipping according to their respective religious beliefs, among other actions.

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Reinforcing right -

By behaving like citizens, even before any legislative action was taken to reinforce their right to behave as such, they created the reality of becoming citizens, as their participation in society reinforced this notion.

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Enslaved population -

By the end of the 18th century, 20% of the American population was enslaved, primarily living in the Southern states of the country. Slaveholders were firmly against abolishing slavery, as free labor was an integral part of their economic prosperity.

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Partial persons -

At that time, to counter any possible political power that enslaved people could garner in the legislative sense, enslaved people were counted as “partial persons.”

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Elite slaveholders -

Simultaneously, elite slaveholders reinforced the institution of slavery through political and philosophical means in an attempt to justify its continuation. Pictured is Stephen Duncan, one of the largest slaveholders in Mississippi. 

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Duality -

While the federal government at the time made no moves to restrict slavery in any sense, some states were. They are sometimes called "free states." This created a sense of duality, by expanding possibilities in terms of citizenship. 

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Loopholes -

This kind of dysfunctional and incoherent approach provided a great deal of loopholes. For example, although the state of Maryland did not legally allow black people to testify against white people in court, judges in areas where there was a greater concentration of freed slaves allowed for such evidence to be admitted.

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Contradictions -

The city of Baltimore offers an example, among many, in which local norms eventually shaped laws. The contradictions between people’s behavior, and ultimately how they were perceived in society based on their actions, would need to, eventually, be bridged.

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Oppressive laws -

Exercising the rights of citizens before the right was inscribed was, therefore, often reflected when opportunities did arise, at any level, to override oppressive laws.

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Demographics -

Continuing with the example of Baltimore, which is a city that hosted a large freed, formerly enslaved population, Jones points to the power of demographics. Pictured is a group of formerly enslaved Southerners making their way north.

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Free population -

In a 30-year period, the free black population in Baltimore went from just over 300 to over 10,000. In the state of Maryland, more than 25% of the population consisted of enslaved people, while the free black population rested at about 10%.

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Incoherence -

The state, holding both a significant enslaved population and a freed population, provoked a great deal of incoherence and contradiction.

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Restricting freedoms -

Driven by the so-called "demographic threat," state laws (such as the banning of abolitionism in 1850 or banning freed peoples' migration to the state) sought to restrict the freedoms of its free population as much as possible, while at the same time, freed people were integrated into civil life.

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Aliens -

Treated as 'aliens' within many of the free states, freed people were, much like the rhetoric we hear in today’s debates surrounding immigrants, framed as threats to both the economy and cultural values.

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Today's migrants -

Similar to the actions taken by freed persons, Jones argues that today’s migrants in the United States are asserting themselves in similar ways.

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Behaving and engaging as citizens -

By pursuing legal action against the violation of their rights and participating in civil life, as well as being active members of the economy (importantly, undocumented immigrants pay their taxes and are still subject to law), they behave and engage as citizens.

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Growing debate -

For the last 30 years, there has been a series of growing debates about the language in the Fourteenth Amendment, which says that “subject to the jurisdiction thereof” necessarily excludes birthright citizenship from those born of undocumented people.

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Inclusivity -

The emergence of the Fourteenth Amendment was to be as inclusive as possible to all those born on American soil; a blanket condition that doesn’t account for their parent’s citizenship or any other factor.

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Trump's executive order -

On his first day in office, US President Donald Trump signed an executive order aimed at revoking the Fourteenth Amendment of the country's constitution. However, on February 19, this attempt was blocked by a ruling from a US appeals court, which deemed it unconstitutional. This decision could potentially bring the issue before the Supreme Court.

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Case to debate citizenship -

With an impending Supreme Court case set to debate the validity of birthright citizenship, there is a great deal of fear regarding what citizenship may look like if the Supreme Court does decide against the amendment.

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Conditions to restore -

Regardless of the Supreme Court’s decision, Jones' historical perspective on how local norms ultimately shape legislation should bring some solace, she argues, as even if the right is revoked, there will be conditions in place to restore it.

Sources: (Boston Review) ('Birthright Citizens')

See also: Countries with the most restrictive immigration laws

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