“The question is simply this: Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed to the citizen?

[…]

“We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. 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.”

– Supreme Court Chief Justice Taney, writing the majority opinion in Dred Scott v. Sanderson (1857)

“Notwithstanding the impositions and deprivations which have fettered us – notwithstanding the disabilities and liabilities, pending and impending – notwithstanding the cunning, cruel, and scandalous efforts to blot out that right, we declare that we are, and of right we ought to be American citizens.  We claim this right, and we claim all the rights and privileges, and duties which, properly, attach to it.

[…]

“By birth, we are American citizens; by the principles of the Declaration of Independence, we are American citizens; within the meaning of the United States Constitution, we are American citizens; by the facts of history…, we are American citizens; by the hardships and trials endured; by the courage and fidelity displayed by our ancestors…, we are American citizens.”

– Frederick Douglass, in The Claims of Our Common Cause, address to the National Colored Convention (1853)

Even though this column is mostly about housing issues, we’re taking a slight detour this month to write about birthright citizenship, a Constitutional right that the Trump Administration is trying to end through an executive order.  But, while a small detour, the theme is still present: what it takes to have a world which values Heart and everybody has a Home.

Birthright Citizenship and the 14th Amendment

The first sentence of the 14th Amendment to the US Constitution is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”  In legal nerd circles, this sentence is known as the Citizenship Clause of the 14th Amendment.  This sentence guarantees citizenship as a birthright for all persons born in the US except babies born to diplomats (who have diplomatic immunity and are not subject to the jurisdiction of the US) or to invading armies in an official war (who are subject to the rules of war).  

The 14th Amendment – along with the 13th Amendment (which abolished slavery and involuntary servitude, except as punishment for a crime) and 15th Amendment (which extended the right to vote to non-white, male citizens) – was passed in the years immediately following the Civil War.  This context is important.  At the end of the legal institution of slavery, against the tremendous weight of laws and court decisions and state actions which upheld the deprivation of freedom and liberty for millions upon millions of people, birthright citizenship was a small, good thing.  Not enough, in and of itself, to repair the wrongs committed or to adequately balance the scales of justice.  But it was one important step forward.  

In this context, the 14th Amendment was intended as a direct response to the Supreme Court’s earlier decision in Dred Scott (quoted above), which held that Black Americans could not become US citizens, even if they lived in a free state.  So, part of the intent of the 14th Amendment is to reverse the Dred Scott decision and establish that Black Americans are citizens.  But it doesn’t stop there.  In drafting the 14th Amendment, Congress could have limited it to apply only Black Americans or only to the descendents of enslaved people/formerly enslaved people.  Instead it applies to all people born in the US (and who are subject to the laws of the US).  At the time, there were those in Congress who argued that the Citizenship Clause was a bad idea because it would allow racially undesirable people like “the Chinese” and “Gypsies” to become citizens.  But against these arguments, the language passed.  In United States v. Wong Kim Ark (1898), the Supreme Court upheld this more expansive grant of citizenship.

Justice is Expansive and Forward Looking

“All good causes are mutually helpful.”

– Frederick Douglass, in On Woman Suffrage, a speech to the International Council of Women (1888)

In part, I bring up the history of the 14th Amendment and birthright citizenship to invoke what would be lost if the Trump administration gets their way.  Revoking birthright citizenship would not only take away the rights of today’s and tomorrow’s immigrants – a terrible loss, in and of itself.  But, in addition to this loss, revoking birthright citizenship would also dishonor and disrespect the struggles and sacrifices – as Frederick Douglass said in the quote above, the “hardships and trials observed” as well as the “courage and fidelity displayed” – of those who suffered, fought, and won the 14th Amendment.  And it would also dishonor those, like Wong Kim Ark, who stood up for themselves and thus helped make real the right which has helped so many generations of immigrants from all around the world.

And, beyond this invocation for us to fight to honor the sacrifices of those who came before us, I write about the history of the 14th Amendment to talk about what justice should be.  Not only what justice should be for us in this current moment, but what justice should be, period.

For me, it’s notable that the fight for recognition of Black citizenship and personhood produced birthright citizenship, a more universal right of citizenship.  This is a testament to the vision of those (like Frederick Douglass) and is a lesson for us moving forward.  Justice should be open, expansive, and optimistic.  When we win one thing, it shouldn’t be just one thing.  How we build our movements, how we design and enact our solutions, how we treat each other – it should be inclusive, from the heart, generous.  It should be with our eyes on a better, more just world, not simply the immediate issue at hand.

In this same way, in this moment when so many things are under attack, we shouldn’t only defend.  We should also be building towards justice.

Bringing It Back Home

At this moment, affordable housing is under attack. The Trump administration wants to cut HUD staffing by more than 50%. Some affordable housing funding has already been cut or eliminated.  Other funding is slated or rumored to be next. Mixed-status households are threatened. And the list goes on.  So, we defend affordable housing and people’s rights to stay in the housing.  And, as we defend, we also need to keep building towards more.  Because the recent status quo has not been good enough, defending to hold ground is necessary but not sufficient.  So, as we defend, let’s continue to work towards a world where everybody has a safe, stable, affordable home. More concretely, let’s continue to work towards creating the resources and capacity to build the housing that our communities so desperately need. And if federal funding is cut, we find ways to raise even more money at the state, regional, and local levels.

Likewise, this moment can’t only be about affordable housing.  So, this column is my invitation for all of us to act more expansively and to come together better, to come together in mutual support.  In these chaotic and worrisome times, I want us to remember both the “hardships and trials observed” and the “courage and fidelity displayed” as inspiration for what has been done and what can be done and as an exhortation for what must be protected and what can be built upon.