As the Senate Judiciary Committee holds its confirmation hearings for William Barr, the current nominee for Attorney General of the United States, it is clear Barr needs to brush up on his constitutional law, as well as U.S. history.
During yesterday’s hearing, Senator Mazie Hirono (D-HI) asked Barr whether or not he believed birthright citizenship was guaranteed by the 14th Amendment. The question is important as the idea of birthright citizenship has come under increasing attack from the right in recent years. From the Republican primaries onward, Donald Trump has repeatedly asserted that birthright citizenship is unconstitutional, should be eliminated, and can be ended by executive order. While some on the right have balked at the last claim, Trump has tapped into an ever-present disdain among conservatives for birthright citizenship.
For his part, Barr seemingly tried to side step the politically divisive issue. However, his answer to Senator Hirono’s question was not only vague, it also suggested that the soon-to-be Attorney General doesn’t know basic constitutional law or history.
“I haven’t looked at that issue legally. That’s the kind of issue I would ask OLC [Office of Legal Counsel] to advise me on, as to whether it’s something that appropriate for legislation. I don’t even know the answer to that,” Barr answered.
There are a couple of worrying signs in this response. First, birthright citizenship is a part of the 14th Amendment, meaning any action to change that would have to be a constitutional amendment, not legislation. This is a basic tenant of constitutional law. The fact that Barr, who previously served as Attorney General under George H.W. Bush, thinks any action can be taken against birthright citizenship through simple legislation shows one of two things: (1) he isn’t competent enough to understand basic constitutional processes in the United States or (2) he was rather insidiously actually answering Senator Hirono’s question.
The latter point warrants a bit of explanation. Barr quite visibly looked like he was attempting to simply move past the question and not answer Senator Hirono. However, if Barr does in fact think that birthright citizenship can be dealt with through congressional legislation, then the only logical explanation for this, barring the above first option, is that he doesn’t believe the 14th Amendment guarantees this status. Whereas the first possibility of incompetence warrants a refresher in constitutional law, this second one demands a lesson in history.
History is quite clear on the intent of 14th Amendment: it was meant to create the birthright citizenship in the wake of emancipation. The 14th Amendment was created to guarantee that freed slaves, free blacks, and their posterity would forever be considered American citizens. Before its adoption, citizenship was a murky, ill-defined, status. The Constitution only mentions citizenship a few times, and does not provide a concrete definition of what a citizen is or who can be a citizen. To this day there is actually no legal definition of what citizenship actually is.
From the Constitution’s ratification to the adoption of the 14th Amendment, black Americans had repeatedly claimed they were citizens because of their birth on American soil. Scholars such as Elizabeth Stordeur Pryor and Martha S. Jones have shown the myriad of ways in which black Americans made claims on this status, only to be rebuffed in many cases. Citizenship could provide black Americans with a recognized spot in the nation’s political community. It represented hope for a formal claim to certain rights, such as suing in federal court.
This leads to the infamous 1857 Supreme Court decision Dred Scott v. Sandford, when Chief Justice Roger Taney crafted an opinion that quite consciously attacked the very possibility of black citizenship. Taney concluded that Dred Scott, an enslaved man, could not sue in federal court because he was not a citizen. He was not a citizen, in Taney’s words, because black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution… On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”
Taney went out of his way to create a Supreme Court decision that attempted to put the legal nail in the coffin of black citizenship. The 14th Amendment was, quite consciously, crafted to upend Dred Scott, which was still the law of the land after the Civil War. Thus when conservatives rail against birthright citizenship and claim that it is not, in fact, a part of the Constitution, they are ignoring America’s long history of slavery, discrimination, and segregation.
When the soon-to-be Attorney General William Barr states that he thinks legislation can be used to make changes to birthright citizenship, it is because he does not believe the 14th Amendment guarantees it. And when he and other conservatives espouse such an opinion, it is because they are once again willfully ignoring American slavery its legacy of racism. This is, admittedly, not surprising. Barr also expressed the opinion during his confirmation hearing that the justice system “overall” treats black and white Americans equally, despite mountains of information proving otherwise.
While the attack on birthright citizenship from the right deserves attention and should be fought at every turn, the underlying historical erasure of slavery and discrimination is also requires our attention. This willful amnesia is why the potential next Attorney General of the United States can, in one day, ignore so many aspects of America’s fraught history with race. And it is why we all must be on guard.
Derek Litvak is a Ph.D. student at the University of Maryland.