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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In two sentences, the amendment severed race and national origin from citizenship and its attendant rights. (The citizenship clause did not apply to Native Americans, whose nations were treated as distinct sovereignties; in 1924, legislation granted Native people citizenship, though they did not uniformly have the right to vote until 1965.) Emerging from abolitionist commitments, these sentences propose a country that rejects the inheritance of inequality. Just a few years earlier, divorcing legal entitlements from racial categorization would have been unimaginable: Representative James G. Blaine later wrote that before the war this transformation could only have been conjured up by “the wildest fancy of a distempered brain.” That this fancy became a reality still seems, considering the bloodbath that preceded it, quasi-magical, and even today, some historians regard the amendment with a respect verging on religious ardor. In 2015, the historian David Blight argued that its first sentence “ought to be embraced as a holy writ that binds our national community.”
That sentence, Sen. Jacob Howard noted in 1866, had been added to “settle the great question of citizenship” — whether some persons could be excluded from it on racial grounds. Codifying an answer in the Constitution, he said, would put this question “beyond the legislative power, beyond the reach of [those] who would pull the whole system up by the roots and destroy it.” Here it is hard not to picture Donald Trump and his cronies, arms out, hands grasping.
Fittingly, the Trump administration’s attempt to reopen the “great question” has zeroed in on that same sentence. Trump and his accomplices contend that “those subject to the jurisdiction thereof” excludes children of undocumented immigrants, as well as newcomers whose presence is lawful but temporary (i.e., people who do not intend to make this country their permanent home). This argument relies on changing the usual historical interpretation of what it means to be subject to a “jurisdiction” — from those who fall under the state’s regulatory power to those who swear total political allegiance. Trump’s team also asserts that the 1866 Congress did not intend for the citizenship clause to apply to undocumented immigrants, because no such category existed then. (In fact, as Congress was well aware at the time, there were people living in the U.S. in contravention of existing regulations.) Amanda Frost, an expert on citizenship law, recently summarized the Trump administration’s arguments as “made up out of whole cloth.”