The Attack on the 14th Amendment
Section 1 of the 14th Amendment to the Constitution clearly 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." The plain text of this section establishes the principle of birthright citizenship, which gives any child born on American soil the rights and privileges of an American citizen. It is the plain meaning of what the Constitution says, and Donald Trump plans to dishonor it on his first day in office by issuing an executive order to end birthright citizenship.
As Timothy Snyder said in his book On Tyranny, "Do not obey in advance." By issuing an executive order to end birthright citizenship, Donald Trump is engaging in action as dictatorial and absurd as issuing an executive order to overturn the First or the Fifth Amendment. Any editorial columnist or legal expert or judge who tells you otherwise is trying to deny a Constitutional truth which should be self-evident.
Even the appeals court judge James Ho, a Trump appointee who aims to be "the next Clarence Thomas," wrote in the 2009 article "Defining American," that "...text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including children of aliens." The 2009 date on this article is instructive, because it is indicative of how even the most extreme right-wing judges thought it was completely obvious back then that the Constitution enshrined birthright citizenship. That is, until the rise of Donald Trump showed that the Republican Party could get into office again through campaigning against immigrants.
The 14th Amendment to the Constitution is so underrated today that many of its provisions are all but unknown to us. For example, Section 2 of the amendment says that representation in Congress will be "apportioned among the several States according to their respective numbers counting the whole number of persons in each State…” This section overturned the three-fifths clause of the original ratified version of the Constitution, which gave the Southern slave states extra representation in Congress equal to 60% of their population of slaves (who had neither human rights nor any right to vote).
Unfortunately, the second sentence of Section 2 of Amendment 14 has almost never been truly implemented at all. That second sentence, which is admittedly difficult to parse, says that if a state denies the right to vote to any proportion of its citizens or abridges the right to vote of those citizens in any way, it should have its representation in Congress reduced in the same proportion.
It’s hard to grasp how radical this is. It means that, if a state blocks the right to vote for its citizens, it should lose a proportion of its representation in Congress for doing that. If the Congress and the Supreme Court in the 19th century hadn’t ignored the plain meaning of what Section 2 of the 14th Amendment says, we wouldn’t have had Jim Crow in the South lasting from the 1870s to 1960s.
If anything, Section 2 of the 14th Amendment has made it clear to me how overly conservative the Voting Rights Act of 1965 truly was. Don't get me wrong. I think the Voting Rights Act of 1965 is one of the best pieces of legislation passed by Congress in the United States. It is the piece of legislation that finally made the United States a true democracy with universal suffrage for everybody, regardless of race, color, or ethnicity. The problem is that the Voting Rights Act never took advantage of Section 2 of the 14th Amendment by threatening states with loss of representation in Congress if they blocked the voting rights of their citizens. If we had Voting Rights Act provisions with teeth like that, we might never have had a travesty of a Supreme Court ruling like Shelby County v. Holder, which basically treats the 14th Amendment and the Voting Rights Act as if they don't exist.
The fact that a provision of the Constitution can be outright ignored by Congress and the Courts is proof that the strength of the Constitution not only lies in the legislative and judicial branches, but within the people themselves. The Constitution cannot be defended and cannot survive without the people taking it upon themselves to understand its provisions, decide upon what they mean, and insist on their enforcement.
The importance of the American people defending their rights through “popular Constitutionalism” is made even clearer by how the Supreme Court outright ignored Fourteenth Amendment, Section 3 in the case Trump v. Anderson. The plain meaning of the Fourteenth Amendment, Section 3 says that, if you have taken an oath of office as an elected official to support the Constitution of the United Staes, you cannot ever hold office again if you have engaged in insurrection or rebellion against that Constitution. That is exactly what Donald Trump did on January 6, 2021, in inciting a mob to attack the U.S. Capitol, some of whom planned to assassinate members of Congress and the Vice President. But we tried to pretend that Donald Trump was merely politics as usual, and now here we are.
Section 4 of the 14th Amendment states "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." The purpose of enacting Section 4 was so that ex-Confederates and their sympathizers couldn't threaten the country after the Civil War by saying that United States didn't have the right to spend the money it spent in defeating the treasonous Confederates and freeing the slaves.
Notice that if we take out the "including..." phrase about Civil war debts, Section 4 also establishes a general principle, "The validity of the public debt of the United States, authorized by law... shall not be questioned." In this respect, the routine Republican practice of holding the debt ceiling hostage, which they have done consistently since 2011, is blatantly unconstitutional. Republican had previously challenged President Eisenhower over the debt ceiling in 1953, but the routine Republican use of threatening the bankruptcy of the United States through debt ceiling fights doesn’t even predate the iPad.
If anything, the great but humble 14th Amendment has taught me is that popular Constitutionalism and the knowledge among American citizens of the provisions of their own Constitution is absolutely necessary for the preservation of our rights. As the history of the 14th Amendment has shown me, the Constitution can devolve to the status of a mere piece of paper, if we let our president, our legislatures, and our courts choose to ignore it. The only way we can make the Constitution a document preserving the rights of all people is if we force our leaders to listen to us and make it so.