Dem
47
GOP
53
On the whole, Donald Trump hates Black history. Actually, it's probably more accurate to say he's basically ignorant about, and indifferent to, Black history. However, his base largely hates it, so he has to behave as if he hates it, too. Just this week, during her confirmation hearings, Secretary of Education-designate Linda McMahon pandered to this impulse within the modern Republican Party, suggesting she would look into a ban on Black history courses, as such courses might conflict with the Trump executive order that bans the teaching of Critical Race Theory (CRT). Just in case you needed hard evidence that the squawking about CRT wasn't really about CRT.
All of this said, Trump has now found one part of Black history he is apparently very passionate about. In order to understand where this is coming from, however, we must back up a bit. First, note that four different judges have now issued injunctions against his anti-birthright-citizenship executive order. Second, note that there is a real Achilles heel in Trump's legal position that goes back to a rather key point in Black history.
As readers undoubtedly know, the Fourteenth Amendment was adopted shortly after the Civil War (July 9, 1868, to be exact), and was prompted by a very clear need to define the legal status of those folks who were formerly enslaved. There were a number of ways this could have gone, but the Congress was substantially under the control of Republicans who were pro-civil rights, and so it was that citizenship was bestowed upon the nation's Black population.
There was, however, a slight legal problem. The fellows who wrote the Fourteenth Amendment could not define the right to citizenship in terms of a person's parents, because most enslaved people were born of people who were themselves not entitled to the rights of citizenship. And so, the already broadly accepted concept of jus soli citizenship was incorporated into the Amendment. If a person was born in the U.S., they were a citizen, unless some other nation had exclusive claims on the citizenship of the person's parents (a circumstance encountered, most commonly, with the children of diplomats).
Whether one consults the historical record or legal precedent, it's clear that jus soli citizenship was meant to apply, and has been applied, very broadly and generously. However, if Trump's XO is going to stand up, then his lawyers (specifically, the solicitor general) will have to convince the Supreme Court that the Fourteenth Amendment was meant to have a limited reach. And arguing that jus soli citizenship was meant ONLY for enslaved people is a way to get there.
Trump shared his newfound interest in safeguarding the rights of those in bondage on his boutique social media platform on Monday:
The 14th Amendment Right of American Citizenship never had anything to do with modern day "gate crashers," illegal immigrants who break the Law by being in our Country, it had everything to do with giving Citizenship to former slaves. Our Founding Fathers are "spinning in their graves" at the idea that our Country can be taken away from us. No Nation in the World has anything like this. Our lawyers and Judges have to be tough, and protect America!
We suspect it is not a coincidence that this largely echoes a piece published in The New York Times that points out this potential line of attack against the Fourteenth Amendment. The two fellows who wrote that piece are both experts in the Amendment, and were not intending to give Trump advice. They were merely pointing out, as we have a couple of times, that there are one or two footholds here if SCOTUS really, really wants to give Trump a victory.
Whether the Supremes actually will want to do that is obviously an open question. This is already a Court with shaky
credibility, and blowing up the Fourteenth Amendment (and