← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Immigration Myths and Birthright Citizenship
00:51:06
Your guide to defending the Constitution from bad originalism
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- [00:00]
Anna O. Law
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- [00:19]
Dahlia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. I'm Dahlia Lithwick. In just over a couple of weeks, the Supreme Court will hear arguments in Trump v. The Birthright Citizenship case. This is a legal question that has no basis in constitutional law, in statute, in text or in history, and yet it is now being carefully scrutinized for its possible legal virtue. Last year, the court and the Trump administration dodged having to answer for President Trump's wildly unconstitutional Day One executive order stripping birthright citizenship from untold numbers of future Americans. In Trump vacasa, the court opted instead to kick the legs out from under nationwide injunctions. But on April 1st no, really, April 1st, the High Court will now address whether the words, quote, 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, and, quote, applies to children born in the United States, to parents who are not US Citizens or permanent residents at the time of their birth. Many, if not most of us, approach this issue with an imperfect and even highly distorted understanding of the complicated American history of migration, deportation, citizenship and nationality. And a whole lot of that bad history is then exploited to make bad arguments about the current debates over citizenship. Maybe the framers of the 14th Amendment really meant only green card holders and descendants of enslaved people or people on the Mayflower when they wrote the words all persons and subject to the jurisdiction thereof. I mean, really, who's to say? Well, it turns out there is a vast body of scholarship to say that that is provably false. So on this week's show, I'm joined by constitutional and immigration rights scholar Anna Olaw. She is the Herbert Kurtz Chair in Constitutional Rights in the Department of Political Science at CUNY Brooklyn College. Her new book, Migration and the Origins of American African Americans, Native Americans and Immigrants, will be published on March 24. And it is an absolutely indispensable table setter on what American citizenship actually means as a constitutional, historical, and political matter. This is vitally important material to review and as we head into these arguments. So, Anna, congratulations on the book and welcome to Amicus.
- [04:04]
Anna O. Law
Thank you, Dalia. And I'm just a little horrified that a book about history is so timely.
- [04:11]
Dahlia Lithwick
Yeah. And it's years and years in the making and somehow lands just days before the court is going to, hopefully, one says, grapple with that very history. And I think I want to start by essentially rephrasing what I just said in your intro, Anna, which is you start the book by just staking out this elaborate mythology that we all seem to buy into about how migration worked throughout American history. And as you say, this is a history quote unquote, that is belied by actual historical fact, by actual political practice. So I would love for you to just start by telling us what the myth is. What is it that most of us are told about how citizenship has been handled from the colonial era to today and how wrong most of us have gotten that history.
- [05:03]
Anna O. Law
I think the biggest myth about American immigration is okay, until the federal government started enforcing our borders in the late 19th century, that it was open borders and so everybody who wanted to come could just show up, come and work hard, and feeds right into the American dream myth. Right? That my ancestors came with nothing but the clothes on their back and a willingness to work hard, and everyone was like that. But the period before the federal government took over immigration didn't mean that there were no laws and that there were no migration restrictions. There's plenty of work and existing scholarship that says, okay, there's, there's states enforcing migration laws in the 19th century, but since I started in the colonial period, it's only then that I realized it even shocked me too. Okay, some of the stuff in US Immigration law today, like, likely to become a public charge, that's in U.S. immigration law today that says that people who can't economically take care of themselves, we don't want them. That originated in the colonial period. So stretching from the colonial period to 1888, first the colonies, then the states had elaborate sets of laws recruiting certain groups of People to come and restricting other people so they don't come.
- [06:37]
Dahlia Lithwick
One of the things I realized as I was reading the introduction to your book, Anna, is that bad originalism works because it mines these deeply held myths altogether. False narratives about American history. And it sounds plausible even when it's wrong. And in your introduction, you quote Yale Law School's wonderful Jack Balkan, reflecting upon, quote, the use of collective memory in a constitutional argument, and the ways that he reminds us that if memory tells us a story of how things came to be, erasure occludes origins, disguises, causes, hides, defeats, and falsifies achievements. And it seems to me like the sin here is that in not knowing more about how early immigration, migration, citizenship laws, naturalization policies work, we distort our collective memory and then start telling the stories about the American dream and everybody could come and go and the doors were flung open and it was a land of perfect equal opportunity. And that actually has not just political effects on the conversation we have about citizenship today, but actual legal effect on the stories we tell at the Supreme Court.
- [07:50]
Anna O. Law
It has policy effects also of how we as citizens and residents of this country, whether we support government actions toward immigrants today and whether we think it's legitimate that states also have policies and laws that either give migrants rights, like think of a state like New York, where I live, where we give migrants, Idaho, documents that are issued by the state, driver's licenses. So what we know and what we don't know about immigration and citizenship history has so many political effects effects and legal effects because the myth goes, we were very generous for a very long time. And, you know, at some point that had to stop because the ills of mass migration. So the federal government's entry into migration sounds benevolent, but only one state had benevolent migration laws, and that was New York. All the other states who controlled international and interstate migration, those laws were restrictionist. So the valence of the laws historically and in the present are different. And so I think some of your listeners might be thinking, what do you mean states were running migration? I mean, the state of Massachusetts was deporting people to Ireland, to Europe, to other states, because they didn't want to be economically and socially responsible for poor people and for disabled people. Another example of states running migration is during this long period, from the colonial period to 1888, states also controlled internal migration. So slave states could ban free black people, not enslaved people, but free black people as well, from being in their borders and dictate the conditions of why and how long they can stay.
- [10:00]
Dahlia Lithwick
So the central myth that gets built up into kind of bad constitutional history. You've just said it so well, Anna. It's like we were so generous and all of these people were so rapacious, and we welcomed all comers, regardless of race, creed or color. And now our huge hearted generosity to all comers over centuries finally has to be nipped in the bud. And every part of that is false. And as we're gonna discuss, not only was it that the colonies were booting people, but that throughout history there's been a very, very clear anti citizenship, anti migration bias that was freighted up with racism and religious bias and anti Native American bias and horrible, as you say, bias to African Americans. And so the central myth needs to be kind of broken down in order to even have the conversation that the court is purporting to have. Can I ask you just a methodological question before we go any further on the merits? Can you ground us in the world of American political development as a subcategory of political science? Just explain to listeners how it differs from the sort of legal and the historical lenses and even the political science lens that we use to try to understand these historical movements. Because I have to confess, this was new to me.
- [11:30]
Anna O. Law
Okay, so American political development is a subfield in political science as well as a set of methodologies. It's the group of people in political science who study history, not just US History, but any kind of history. And it's not using historical data. It's more that we periodize differently from U.S. historians. We focus on the timing and sequencing of events, including of political events. And, you know, think of major Supreme Court cases when something happens often explains why it happened. For example, why did birthright citizenship land in the Constitution when it did? It definitely had to do with the Civil War and the Reconstruction. But why didn't it show up earlier? Why didn't the federal government take over immigration controls before 1888? Why didn't that happen earlier? People always ask me, well, it was inevitable, right? I said it. Maybe. But why in 1888? Why not 1820? So what American political development scholars do, like historians, is to pay very close attention to when something is happening and the sequence in which policies and institutions are developing. So in my colonial chapter, for example, I note that any colony that had indentured servitude first was always followed by slavery. And the pattern is there because there's laws already there to control and restrict the movement of indentured servants that are then repurposed and refashioned and used against an even more restricted population. So that's the nutshell version of American political development.
- [13:37]
Dahlia Lithwick
It's incredibly helpful because I think what your work is trying to do is bring together all the sort of blank patches that don't get factored into the story we then tell. And it's incredibly important to see how rich that is. You mentioned your chapter on the colonial era. I'd love to stop there. You talk in the book about the crazy quilt of various migration policies throughout the colonies. And you note that at the time, this wasn't so much about bringing people in or keeping people out, but, as you say, kind of producing a population. You just wanna populate the place. And I would love for you to start by talk about the role of indentured servants who were brought to the colonies and how that became all but invisible to U.S. history. When we talk about what then becomes slavery.
- [14:28]
Anna O. Law
It's a topic I didn't know much about, and I always thought of indentured servants as a labor category. But what I found in the colonial period is it's a migration category. The colonies are desperate for warm bodies and people because they need to occupy the land. They need to work the land and farm the land into productivity so crops can be grown and the land can sustain families and a population. And they need to occupy the land because that's Native Americans who live there. And Native Americans are defending their own land. And you can't occupy and defend a territory that other people are contesting because they were there first. If you only have three people there.
- [15:13]
Dahlia Lithwick
There.
- [15:14]
Anna O. Law
So the vast majority of colonial migration law is about recruitment, getting people to come there. But it costs so much to go from England to the colonies. Almost a year's salary for most people. Very few people can afford it except very wealthy people. So indentured servitude starts as a apprenticeship arrangement. In England, you know that you train young people for a trade. But it becomes a migration vehicle in the colonial period where, okay, so I'm not wealthy enough to go all the way to the colonies, But I hear such great things. So I will sign away a number of years, maybe five to seven years of my life to work for someone under a contract so that they will pay my passage there. And the five to seven years that I'm under contract as a servant in the North American colonies, I know that's gonna be pretty hard work and miserable. But if I should survive, then I can strike out on my own and maybe build my own family. So indentured servitude becomes a migration Category. And the thing about the colonial period is not a binary between free and unfree people. It's a continuum of free and unfree. And I am counting indentured servants as free because they at least had the option to consent to that contract. And even those, like convicts who were shipped off and sold as servants, there's a finite period to their indentured servitude. The convicts that were shipped off were referred to at the time as his Majesty's seven years passengers. So should you survive your servitude, which was not a given, but if you did, at least you were free. And that is in huge contrast to enslaved people who did not have that contract protecting them. And so they were enslaved for life.
- [17:22]
Dahlia Lithwick
To concretize the difference on that continuum of indentured servants to enslaved people. Describe the difference between the rights of the poorest white European woman arriving in the colonies as compared to an enslaved African woman.
- [17:39]
Anna O. Law
On the surface, if you don't look too closely, European indentured servants and enslaved Africans lived side by side and worked in the fields side by side in the same crappy jobs, and they suffered the same sort of work conditions, but the legal rights were different. So the servants have a contract very clearly delineating, okay, so they're contracted for five years of service or six years of service. Although there were some Africans who were treated as indentured servants, that is very rare. And lacking that contract, African people were treated as property. Servants could complain and sue if at the end of their indenture contract, they're usually given some clothes and some land. And servants could legally contest that. If their masters did not provide them, they could contest violations of their contract. But enslaved people without a contract, they cannot contest their living conditions or their work conditions. Significantly, for women, there are legal prohibitions that servant women can't get pregnant because it would cut into their work. But if servant women got pregnant, it extended their contract because there's a period when they're pregnant where they can't work. So for a servant woman to illegally get pregnant, she gets her contract extended maybe by a year. But the kids are not servants unless there's other things going on. With enslaved black women, there are actually laws that their offspring are also condemned to a lifetime of enslavement. So the status of the children are hugely distinct. And so in that colonial chapter, after walking readers through all the categories of degrees of freedom, I have to come to the conclusion that you cannot compare indentured servants to enslaved people because it's morally not correct to do so it's legally not correct to do so. It's just analytically distinct categories of people.
- [19:59]
Dahlia Lithwick
At what point does the number of enslaved people just completely eclipse the number of indentured servants? So that now we're talking about a different migration question, and why does that happen?
- [20:12]
Anna O. Law
Most of the imported migration of servants is throughout the colonial period until 1680. Basically, what happens is European servants abandon the indentured servitude trade, because word is getting back to England, you know what, it sucks. They work you to death. And then should you survive your contract, there is no land because all the rich people have bought all the land and they're hoarding the land, and it's just not a good deal. And so servants in Europe stop coming around. The same time the British government gets more direct access to enslaved African people. And through a series of political economy moves internationally, the British government enters the international slave trade Instead of the colonies obtaining enslaved people through third party other imperial powers. And so the price of servants becomes a lot more expensive, and the price of enslaved people drops lower. And so planters in the mainland colonies decide, well, it's just much cheaper for me to purchase enslaved people instead of all these servants on contracts who are then going to leave. So there's that transition from what was mostly an indentured servant flow of Europeans into the colonies. And the 1680s is where the enslaved importation trade eclipses the servant trade.
- [21:54]
Dahlia Lithwick
This is important. You've already sort of noted this. Even as they're bringing in forced labor, the colonies had all sorts of restrictive policies on migrations that, as we've noted, are rooted in religion and health concerns and other policy preferences. And now we have the colonies kind of are at odds with the crown, with England, over who is in control of migration policy. So this is the beginning, right, of two sovereigns making competing claims about who's in charge and what's the aggregate effect of that tension.
- [22:27]
Anna O. Law
The colonies and England clash on a number of issues, and one of them is migration. And I was surprised to find lines in the declaration of independence where the colonists are very upset. For the most of the colonial period. The imperial government was very hands off and said, okay, you know the colonies. Yes, yes, yes, you run your own migration policy. You can decide who comes, you can do your own recruitment, and you can use mass, fast and easy naturalization to make non English people into English citizens. That's fine. But the crown starts interfering, and the colonies get very upset. One example where the colonies and the crown really disagree is on South Carolina tries to pass a series of bans, outright bans, and then laws taxing heavily the importation of enslaved people. Now, they're not doing this because they have moral qualms about slavery. They are concerned about enslaved insurrection because enslaved people vastly outnumber white people in South Carolina colony. But from the British standpoint, the imperial government standpoint, they're trying to enter the international slave trade. It is a very lucrative trade. They just strike down South Carolina's laws. Of course, South Carolina gets very upset and says, we have been running migration from the very beginning. We know better what local conditions are like. Why are you interfering? And so that line ends up in the Declaration of Independence about domestic. He has incited domestic insurrections. They are, of course, talking about other domestic insurrections in the colonies, but it is in part about the slave colonies very upset at the imperial government striking down their bans and importations against enslaved people.
- [24:34]
Dahlia Lithwick
There's one other really key piece of this that I want to touch on before we move on, and that is, of course, inherent in all of the tension around the founding and the founding documents and the debates is this question of Native American belonging and exclusion and citizenship. Can you talk through that piece of it? Because it's profoundly different from what we've just described in terms of enslaved people.
- [24:59]
Anna O. Law
So a journalist I did an interview with a few weeks ago asked, you're an immigration scholar. You are a scholar of immigration policy history. What on earth are Native Americans doing in a book about immigration policy? What do they have to do with immigration restrictions? And I said, native Americans, they're not migrants. They're already there. They have nothing to do with immigration restriction, but they have a whole lot to do with migration recruitment. All the free land that was dangled by the colonies to get voluntary migrants and in the early Republic, to get European immigrants, that is either stolen land or contested land from Native people who already lived there. The Trump v. Barbara case is about birthright citizenship. When we talk about US Citizenship, there is a tendency to assume that, well, of course, everyone wants legal citizenship because it means access to rights, privileges and protections. But for Native people, that is not to be assumed because Native people, indigenous populations, have a distinct relationship to the land as well to the US Government and state governments. So Native people, not all of them, want U.S. citizenship. What they most want is their sovereignty and their land ownership respected. So citizenship is not always a great thing for Native Americans. They don't want rights given to them by settler governments. They want their own right of self determination and self government in their Native nations. How citizenship has been used by the federal government toward Native Americans is not to grant rights, but it's to take their collective rights that are secured through treaties away. And so the orientation of African Americans, Chinese immigrants, or any immigrants to the United States, the goal is to gain legal citizenship. But for Native Americans, that is not at all the goal. Some choose American citizenship to stay on their land, but that also means that they are now subject to US Laws and they have cut ties to their tribal nations.
- [27:28]
Dahlia Lithwick
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- [32:07]
Anna O. Law
Since I am a political scientist, we always start with the research question. And I had what I thought was a pretty straightforward research Question. So in migration and citizenship in a federal system of government, where the states and the national governments share power, where's the location of the dividing line between the federal and state government on citizenship and migration? And so it turns out from the colonial period to 1888, that line is set. So mostly the local governments, first the colonial governments, then the state governments have full control over international and interstate migration. That line shifts after the Civil War when immigration federalizes. But the other piece of that puzzle is the citizenship. No one knows at this point in time what is in the package of rights that. Okay, yeah, yeah, yeah. The right to vote, the right to run for public office, the right to serve on juries. What else is in there? So citizenship and what's in that package is undefined during this period. And the Alien Friends act is interesting because the US Constitution was remarkably unhelpful in answering my question. The first thing I read is because Trump and, you know, the federal government, including under Biden, under Obama, is like, you know, chest beating and saying, the US Government, the national government, always had control over immigration. No, it did not, and it could not. It could politically not have happened. How do I know that? Because by looking at the politics surrounding the Alien Friends act, the prospect of John Adams saying, well, I, I, as part of the Alien and Sedition Acts, these three laws that the president can have the right to deport aliens that are from, we are not at war with. And the slave states went nuts, and they said, no, no, no, no, no, no, no, no. We cannot have a federal deportation power, because what if that guy deports all our enslaved people?
- [34:22]
Dahlia Lithwick
I guess now we're skipping ahead to the Civil War and the Reconstruction Amendments, and it's just not possible to understand the debate. We are locating it in the Reconstruction Amendments and the creation of formal black citizenship and the conferring, finally, of birthright citizenship to the children of those who were born legally on American soil. And now, really, and this is important for the reasons you were just saying, finally vesting authority in the federal government and not in the states. And I think this is so important to the larger work. This purported to lift up former enslaved people, but the results were very, very mixed for other groups that were not white. And I'd love for you to explain the effects that this had on a lot of other minorities that were not suddenly, like, living the dream.
- [35:20]
Anna O. Law
The 14th Amendment and the birthright citizenship clause in particular, to me, is one of the high points of U.S. history when people say, you know, what are you proud of in U.S. history? It is the 14th amendment. It is section one of the 14th amendment. And because what I did in this book was to study groups of people that are usually studied separately in different bodies of scholarship, it's when I cut through those disciplinary silos that I saw, oh, wait. The birthright citizenship clause. And the 14th Amendment is not a tide that lifts all boats. The Reconstruction Amendments in general, it sounds crazy to say. What could pro possibly be the problem with these Reconstruction Amendments? Isn't that the height of democracy? The 13th Amendment, which prohibits slavery and outlaws it? What could possibly be wrong with that? There's nothing wrong with that. It was a huge milestone. There are African Americans who have fought for generations to get rid of slavery, and it's finally gone. And so. So definitely the 13th amendment is not something to sneeze at. It does not, however, eradicate other kinds of enslavement and forced labor. Specifically, there's peonage systems and debt peonage systems where native people in the Southwest had for decades been subject to. They were locked in these systems, which were like a type of slavery. The 13th and 14th amendment don't eradicate that kind of. Of forced labor. So the 14th Amendment and the birthright citizenship clause make very clear for African Americans, both formerly enslaved and who were free black Americans, that they are unquestionably U.S. citizens. The 13th and 14th amendment, though they have negative effects for Chinese immigrants. Chinese immigrants start arriving in the United States in significant numbers in around 1850 in California. And because of the 13th Amendment's passage, the country is very anti slavery. You know, they had fought a civil war over slavery, but Chinese immigration comes to be portrayed in the national press and in public opinion over time as unfree immigration. And so the Chinese get racialized into, well, they are coolies. Now, coolies are not exactly a legal term. It's not a legal category. It's not a biological category of people. It's a socially and politically constructed category of people who are then banned. They meant the Chinese. The passage of the 13th and 14th amendment make it much easier to label Chinese immigrants unfree. And so the argument of these people who fought against slavery is we just fought an entire civil war to get rid of slavery. Do we want another kind of slavery to just replace African American slavery? And Chinese migration was so different from enslavement, but it gets painted as slavery as a kind of unfree labor. And that paves the way for one of the first federal immigration laws after the Fed's takeover. Immigration, the Chinese Exclusion act of 1882, which excludes all Chinese laborers, which is basically all Chinese immigration. And that is not completely lifted until 1965.
- [39:18]
Dahlia Lithwick
Now I'm going to ask you to do the thing which is to unpack the really freighted language in the birthright citizenship clause that subject to the jurisdiction thereof. I think we thought we knew what it meant, and suddenly it's up for debate. And I'm guessing you have many, many thoughts about the history that went to subject to the jurisdiction thereof in terms of both what it meant historically and what it purports to be doing right now.
- [39:48]
Anna O. Law
When the framers of the 14th Amendment rose, that provision subject to the jurisdiction of it was pretty clear they meant everyone except very narrow categories of exclusion. So, for example, they don't mean children born to diplomats who are serving in the United States, they don't mean Native Americans, and they don't mean children born to invading soldiers. Those were the clear categories. But today I hear bizarre interpretations of what that means. And by bizarre, just to be clear, I mean ahistorical and wrong. I hear arguments that it was about the children whose parents were temporary immigrants. That's not what they were talking about. A common argument I've heard is, well, there were no illegal aliens back then. Well, actually there were. I mean, unauthorized people, if you want to call them that, just like over a century of state laws. So there are plenty of people who have broken some of those laws. And then if you only want to restrict it to federal immigration law, the Congress passed a law in 1808 banning the international slave trade. And still yet ships are smuggling enslaved people in. And so the framers of the 14th Amendment knew about that. They knew about those ships coming in. They knew about the hundreds of African enslaved people smuggled in after the 1808 congressional ban. So there were unauthorized people in the US and did the 14th amendment include their children? Yes, it did, and they knew that. But the group that the Congress and public opinion motion most despised at the time were the Chinese immigrants in the West. And there are extensive discussions about, well, surely you don't mean the birthright citizenship clause to mean the children born to Chinese immigrants. And the framers said no, yeah, we mean them because even though their parents cannot gain citizenship because there are laws banning them from naturalization, we do mean the children.
- [42:13]
Dahlia Lithwick
So, Anna, I think for me, one of the big takeaways of your research is that implicit in the mythology of federalism is this very lawyerly and very elegant claim that it is inherently rights protective right that everyone is going to jealously guard their Prerogatives and thus rights will prevail. And all of your work strongly proves that federalism can actually become the three card Monty by which nobody's right, rights are protected. And there's no part of government, not state, not local, not federal, who is in fact protecting your rights. And that also is one of the byproducts of the magic of federalism.
- [42:53]
Anna O. Law
You pointed out that. You know, when I thought federalism was to protect our individual rights, that's what the framers had said. That if you divide government power between three branches and further divide government power between the federal government and the states, that protects everyone's individual rights. And the biggest case counter to that is Native Americans. For Native Americans, the entire federal system and constitutional structure is a settler colonial creation that did not have their needs in mind and did not consult them. When the US Constitution was ratified, they definitely had thoughts about it. They debated it amongst themselves. Native scholars have shown they were skeptical of the whole enterprise. From the Native Americans and Native nations point of view, it doesn't matter whether the federal government or the state government is bestowing or withholding rights. We are sovereign on the same geographical territory and so it doesn't much matter which level of government it is giving us rights. We want the right and the ability to self govern and to set our own policies. The other shifting thing about federalism is that the valence of the laws change over time. So you know, my story from the colonial period to 1888 is a story of the valence is states bad, states discriminatory and federal government completely out of the picture, but states bad, states discriminatory. In the civil rights story for African Americans, once the feds take over, more justice, less discrimination. But in the immigration story, if you fast forward to now, you cannot say states bad, federal government good. I mean it has flipped.
- [44:55]
Dahlia Lithwick
We are going to take a short break.
- [45:01]
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- [45:14]
Anna O. Law
You don't say.
- [45:15]
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- [45:25]
Anna O. Law
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Dahlia Lithwick
Pickup fees may apply.
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- [46:17]
Dahlia Lithwick
And we are back talking about what American citizenship really means historically and constitutionally in the face of Supreme Court's upcoming oral arguments on birthright citizenship with Anna O.
- [46:31]
Anna O. Law
Law.
- [46:32]
Dahlia Lithwick
I just want to ask you about one specific case if I may, because when the most recent raft of trial balloons for getting rid of birthright citizenship were launched, we all got very hyper focused on a case called Wong Kim ark and the 130 years of what we thought was settled law and precedent that derived from that case. And I know that's not the sole focus of this conversation, but I think those Chinese exclusion cases and that specific case tells us an awful lot about how we are thinking about citizenship and how you are thinking about citizenship. Can you just walk us through Wong King ARC for a minute?
- [47:12]
Anna O. Law
So Wong Kim Arc is a case that occurs after the federal government has completely taken control of entry exit policy from the states. So it's post, post Civil war is post 1888 and the Chinese Exclusion act is in full effect. The US Government does not want Chinese laborers and really any Chinese immigrants. The story of immigration, federalizing and nationalizing doesn't have a happy ending once the feds take over. Boom. Chinese exclusion. But Won Kim arguments Park is the case about not the Chinese immigrants who are here and who are banned from naturalizing, reinforced again in one of the Chinese Exclusion Acts. It's about what happens to their children, what is their legal status? So the question is what is the citizenship status of children born to Chinese immigrants who cannot naturalize? They cannot Naturalize because of U.S. law. Law. And the Supreme Court says no, we do not like Chinese immigrants, but if their children are born in the United States, they are birthright citizens, just as African Americans and any other immigrants are automatically U.S. citizens. It's a powerful case because this is a court. These are not, not pro Chinese people. They are just as racist and as discriminatory. But they realize, okay, you know what, if the birthright citizenship is to have its full force, you can't be carving out exceptions for ethnic groups and racial groups. And one of the worries they said, you know, if we get too narrow, oh my God, what are we going to do with the children born to undocumented unauthorized European immigrants. They're going to be stateless. We can't do that. So to me, it's very significant that the Supreme Court adjudicating citizenship for a reviled immigrant group still comes to the conclusion we me, yes, children born to Chinese immigrants who themselves cannot become citizens are US Citizens. And the dissent and all the arguments raised in the dissents of that case are now being made in some of the arguments today to strip birthright citizenship.
- [49:50]
Dahlia Lithwick
It is an amazing inversion and reversal. And I think we have to take it extremely seriously because it really does, again, to quote Jack Balkan, kind of guide you to ideas that are off the wall, coming onto the wall at lightning speeds. I thought we would end, if we can, by revisiting this question of our shared constitutional bad memory and shared constitutional myth making and birthright citizenship and this case that's coming to the court in the next couple of weeks. I want to just straight up say that when President Trump first signed that executive order and floated stripping citizenship rights for millions of Americans, even during the campaign, my co host, Mark Stern and I were very leery of dedicating time to this conversation, to dedicating an entire show to it, because I just refuse to treat something that is constitutionally and historically unserious as though this is serious material for the court to be grappling with. And so here we are. Despite my refusal to engage, the court has charged forward to engage. And I wonder, as the briefs are coming in and you're looking at the history and you're seeing, as you're noting, you know, dissents quoting as maturities and bad history being chummed up from the ether? Can you lay out for us, based on your extensive scholarship in this area, Anna, why the 14th Amendment framers chose to use the words all persons when they decided to bestow American citizenship to those born on American soil, why those words were important and why that has to be the lodestar here.
- [51:40]
Anna O. Law
It's very significant. They could have said that the rights of equal protection and due process are for all citizens. They chose not to use all citizens. It says all persons. And I think they were very mindful of the fact that a bloody civil war had just concluded. They were mindful of the fact that states had been discriminating against black people. And its states states that we're going to do any sort of discrimination. So by saying all persons, they are now making clear that US Citizenship stands above state citizenship and that the federal government will enforce the protections of state citizenship. So it is enormously important that they meant all persons, including Chinese people who are not citizens, who then used the federal courts to fight against the Chinese Exclusion Act. And they did so very successfully. One thing that I think readers really need to know, the birthright citizenship provision is in the US Constitution as an amendment and not a law passed by Congress. Why did they do that? The framers did it the hard way. They went through the Article 5 process of changing the Constitution instead of just passing a law. Birthright citizenship first comes up in the Civil Rights act of 1866, but the framers were worried, okay, but if it's just a law passed by Congress and the president, then a future Congress could pass another law wiping it away way or a future Supreme Court could come along and say, oh no, Dred Scott was wrongly decided and wipe it away. So by putting it in the Constitution, they meant to make it more durable. They meant to raise the bar of what it would take to amend it and to get rid of it and to change it. And so birthright citizenship is not just a law. It's not not just a law passed by Congress and you certainly cannot change it by executive order.
- [53:59]
Dahlia Lithwick
Anna O. Law is the Herbert Kurtz Chair in Constitutional Rights in the Department of Political Science at CUNY Brooklyn College. Her brand new book, Migration and the Origins of American, African Americans, Native Americans and Immigrants is coming out on March 24th. And friends, the only way to think through these really thorny issues is to immerse yourself in the history of it. You cannot fake your way through this. So I'm just gonna say to folks, pick up the book and think very, very, very carefully about what it means to buy into bad originalism and bad mythmaking when it really violates, as Anna, you have just said, the very, very beating heart of what the 14th Amendment was designed to do. Thank you so, so much for being with us. This has been been immensely clarifying.
- [54:53]
Anna O. Law
Thank you so much for having me on and thank you for reading my, my book.
- [55:05]
Dahlia Lithwick
That's all for this episode, but Amicus plus members, I cannot wait to see you in the bonus Boom Boom Room where Mark Joseph Stern will join me to unpack some of the legal news news we couldn't cram into the main show. It's a kind of jurisprudential unboxing, if you will. On today's Amicus plus bonus episode, we are going to talk about yet another embarrassing chapter For Donald Trump's one time interim U.S. attorney for D.C. eagle, Ed Martin, who faces a new formal ethics complaint. We're going to talk about the continuing clown show behavior at the Department of Justice, where this week President Trump Trump himself ordered the DOJ to keep appealing the law firm cases just hours after his own government lawyers had told the court they were abandoning them. And then, to top it all off, a dissent in a case that is so outrageous that 29 active and senior judges on the 9th Circuit felt compelled to issue a rebuke to the judge who wrote it. We may well be beyond parody at this point. Visit the slate.com amicusplus to join the joyful ranks of Plesketeers. By joining, you support our work and you get loads of extras and ad free listening and paywall free reading@slate.com you can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicusatslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. Sara Burningham is Amicus Supervising producer. Our producer is Sophie Summergrad, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.
- [57:19]
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