Transcription
Welcome to the Court of History. I'm Sydney Blumenthal. I'm here with my colleague Sean Wins of Princeton University. Um, Sean, there's so much going on. Um, uh, we're at the end of a fire hose, and yet people really need to understand that case by case, this is, this has deep historical roots as well. Uh, uh, these, these attacks on things that are very much part of the Constitution, like birthright citizenship, um, the, uh, the census, uh, you know, even this latest, uh, effort at gerrymandering in, um, in Texas, which is rooted in a recent Supreme Court decision.
>> What do you think?
>> Oh, yeah. I mean, I mean, sure, I mean, just on the issue of voting rights alone, I mean, it's, it's been a process. It's been a war of attrition, if you will. I mean, going back to, well, lots of things, but trying to get basically to gut the Voting Rights Act of 1965. So that's already, you know, an historical question. But then the Voting Rights Act, I think it's actually, in the Voting Rights Act was meant as a supplement to the 15th Amendment. So we're really talking about things going all the way back to Reconstruction in the Civil War. Rights that were guaranteed that hundreds of thousands of men and women, in some cases, died for in the Civil War to secure these rights. First, abolition of slavery, but then the rights that were attended upon that. That's all, that's all part of the history of what's going on here.
No uncertain terms.
>> Yeah. Well, um, Ulysses Grant, when he became president, referred to the Civil War amendments as the results of the war.
>> That's right. That's, and that's what people died and sacrificed for. That was the new birth of freedom, are those three amendments in the Constitution. And they are not simply amendments. They are the Constitution. Um, and we have, uh, someone here, um, who really can illuminate for us, um, the background and, uh, the past and the present. And that is, uh, someone we're very honored to have with us today, Cherylyn Eiffel, the Vernon Jordan endowed chair in civil rights at Howard University. She's a law professor. She's the former president and director counsel of the NAACP Legal Defense Fund. Welcome to the Court of History.
>> Thank you so much. I'm thrilled to be here.
>> Yeah. Well, there's so much going on right now that's worth, uh, commenting on and explaining to people. Uh, you know, we're in the middle of this gerrymander case, which is based on a 2019 Supreme Court case where the Supreme Court, um, literally threw up its hands on purpose to open the door to partisan gerrymandering on the part of the Republicans, led to, um, North Carolina gerrymandering so that, uh, today, if they had not done so, the, uh, House would be Democratic, and we would not be where we are with Trump.
>> What is your view on, on what's going on?
>> Oh, that, that's a nice, that's a nice pitch. Uh, well, let me go back a little bit, if you, if you don't mind, because I want to go back to your opening, uh, comments. You said the Civil War amendments, they are the Constitution. Uh, and you talked about, um, President Grant's description of them as the, um, result of the Civil War. I'm, I'm going to go a step further because I think it's important in this moment to understand what those amendments represent. The Civil War amendments were the first and most consequential, um, opportunity for this country to be a true democracy, right? Um, the original Constitution, as we know, um, those founders, the founders that, you know, we often talk about the men in the tricorn hats, the Hamiltons, the Jeffersons, the Madisons, uh, as they wrestled with this question of how to put this nation together, punted the ball. Uh, they knew that slavery and the institution of slavery was contrary to the values that they purported to, uh, hold for this country, certainly contrary to the values of the Declaration of Independence. And in order to complete the job, they engaged in a series of compromises. Compromises with morality, compromises on race, compromise with the identity, the national identity of this country. Uh, we see those compromises in, of course, Article One, the three-fifths compromise, the decision to allow the South to count, uh, enslaved people as three-fifths of a person. Um, we see it in, in the decision to allow the slave trade, which they delicately called the importation of persons, to continue until 1808. And that's important to understand. That's our first Constitution, right? To the extent we think about equality and equal justice being a, a part of our national identity, that does not come from our first Constitution. That shows up for the first time in the 14th Amendment, which is the first time the concept of equality between people is expressed in our Constitution. And the reason it's so significant is because it is that language in the 14th Amendment, the equal protection of laws, that reaches back over the first Constitution to pull that language that many people, I think, think is in the first Constitution, but actually is in the Declaration of Independence. We hold these truths to be self-evident that all men are created equal. And it's the 14th Amendment that reaches back over the compromises of the first Constitution to pull that promise into our foundational document. In that sense, it's so significant when, um, when Thaddeus Stevens calls it the, the blueprint for a new nation. That is essentially what it is. And because we have, uh, done such a poor job of, um, educating Americans about the fact that we were refounded after the Civil War, that there was a second founding, it becomes easy for people to kind of skip over the significance of those amendments that Grant described or that you described as the Constitution. The 13th Amendment ends slavery. The 14th Amendment is jam-packed with so many things that, you know, I could, I could spend a semester teaching about it and it's never enough, right? But just quickly, birthright citizenship, equal protection of laws, due process, and so on and so forth. Uh, the provisions that purport to punish states that engage in voter suppression against Black people, section three, which the Supreme Court just kind of, uh, eviscerated a few years ago, that says people who participate in insurrection can't participate. But the most important part, and the part that I think is so controversial, is the, is the giving of power to Congress to enforce, uh, the amendment. And the same in the 15th Amendment, which does not include an affirmative right to vote, but says that you cannot deny the right to vote based on race or color. And that speaks to the overall project of these three amendments, which I think gets lost in the shuffle, but against which there has been resistance from the very beginning. And that is that the, the, the Civil War amendments reorder the significance of our citizenship to place our national citizenship ahead of our state citizenship. Prior to those amendments, you know, we all watched Hamilton, right? You know, James Madison is a Virginian, right? You know, there's a reason we all know that Ben Franklin was from Pennsylvania, right? Like, we, we know the state identity of those original framers because your state identity was incredibly important. But just listen to the language of the first line of the 14th Amendment, the birthright citizenship language. All persons born in the United States are citizens of the United States and of the state in which they reside. Your national citizenship has primacy. And by giving power to Congress to enforce the rights, the Reconstruction Congress is saying, "We recognize that there are certain rights that we cannot trust the states to enforce."
>> And that's part of the resistance. Part of the resistance is, is this reordering and this conferral of power, of of power on the federal government to protect these rights. And so the whole states' rights, you know, idea, which has now been revived again, was revived by President Reagan, who ran on that platform.
>> And is now revived again.
>> Is resistance to the 14th Amendment. And we don't talk about this as, as a, a way, as a form of constitutional resistance. We just treat it as though it's part of the platform of a political party when it is, in fact, resistance.
>> Yes. To a, a theme, an idea, and the explicit language of provisions of our Constitution. So, I just want to, um, u, um, comment on the point that you just made about birthright citizenship in that language, which is to the people who wrote that, if you're interested in original intent, they understood that it was, um, an explicit rejection of the compact theory of the Const, of the Constitution, that it was simply, u, a contract among equal states and that the national government did not have authority over it. Lincoln, um, spoke about this often for years. Um, and it is what he meant when he said, of the people, by the people, and for the people.
>> He meant that that was the new birth of freedom. And it was very, it was a constitutional idea. Um, and it was enacted in the 14th Amendment right there where you point this out. And as you also point out, um, this states' rights idea, which was, you know, early developed from the very beginning, um, and taken up and formulated, uh, by John Calhoun, um, as, as a justification for slavery, of, uh, using states' rights has, you know, is like a, um, it's like a, the walking dead that comes to, you know, to attack us.
>> And it, it came back, you know, to, to do any reconstruction and then to attack the whole civil rights movement, through what was called interposition.
>> Um, uh, and, you know, and now we're back again. We're back in the same struggle.
>> Yeah. And, uh, I, I, I think, you know, so one of the things you, you didn't mention in the intro is that, you know, so I launched the 14th Amendment Center for Law and Democracy at Howard in the spring, in in March, and I've been thinking about doing this for a decade, really, to be honest. Um, in part because I, you know, if you're a civil rights lawyer, the 14th Amendment is your stock and trade. Sometimes the 13th, often the 15th. I've been a voting rights lawyer since 1988, though, for sure. Uh, but it's so interesting that there's a whole national dialogue that kind of, uh, glosses over, right, the constitutional grounding of the cons, the concept of equality, right, of the opposition to voter suppression. It, it, the conversation so often is about, you know, uh, racism and people's feelings and colorblindness and, and we should talk about colorblindness. Uh, you know, and, um, and just sidesteps, um, the, the very powerful language and the powerful stance taken by the Reconstruction Congress and that these three amendments take in the formation of our country. And so we're left kind of arguing as though we're asking for, um, for some pittance, as though we're asking for charity, as though we're asking for people to be kind and moral. And with all due respect to, you know, Martin Luther King and other, um, leaders who beautifully spoke to people's souls and morality, I am not a faith leader. I am a lawyer. And I, uh, I, I have been so frustrated by the, um, way in which we have been disarmed from describing the demand for equality in powerfully constitutional terms. And so I start, I started the center from the premise of, um, I talked about this in a, in a film a few years ago that, you know, if you see a, if you see a guy in the, in, in the line, and you know, waiting to order in McDonald's, and he's got a, a long gun on his back, and you ask him, you know, why do you need this, this, uh, AK-47 to, or AR-15 to, to get a Quarter Pounder? He's going to say, because it's my Second Amendment right. He's going to speak in constitutional terms. We have all these conversations about the First Amendment. People are often wrong about the First Amendment. Elon is wrong about the First Amendment. Zuckerberg's wrong about the First Amendment. But, but people feel comfortable, right, talking about having First Amendment rights. Most Americans know they have First Amendment rights, even if they're not interpreting it, interpreting it absolutely correctly, right? They know they have the right to worship as they please. They know they have the right to free speech. We will say jokingly in conversation, I plead the fifth. You know, it's not as though we never talk about the Constitution in casual ways. We actually do, but we almost never talk about the concepts of equality and anti-discrimination and, um, and, and equal justice. You know, we don't see a police officer beating up somebody on the street and say, he's violating his 14th Amendment rights. That's just not the language of media. That's not the language of American conversation. And this bothers me. And I want, the reason I wanted to create the center was to create a place where we can really strategize about how to inculcate in the American mind the values and American dialogue and American narrative, uh, and American policy and law, obviously, the powerful importance of the 14th Amendment and what it stands for.
>> This is, this is really important to get across, I think. And, and let's just go through it. Fact, I mean, the 14th Amendment, it seems to me that the people who are very active today know very well what the 14th Amendment is about and they want to get rid of it, basically get rid of it. I mean, they've been trying to get rid of it since, since it was ratified.
>> But let's go through it, right? Section one, equal protection under the laws. We saw in Bush v. Gore that perverted into a partisan operation. Equal protection under the laws no longer meant exactly what it was supposed to mean. It meant George W. Bush should be elected president.
>> Yeah.
>> That's, that's the thing about the 14th Amendment is that it, it, you know, it is so cynically used. It can be fleeced for purposes that, um, you know, that that people wish that are contrary to the original purposes. Um, so you're right. They do. On one hand, I think people know about equal protection, but I honestly believe that not one justice on that United States Supreme Court, save for Ketanji Brown Jackson, had ever fully read the 14th Amendment before they had to deal with the, for example, the section three insurrection case. I don't think they ever read section three before. You know, I don't think most justices, I know most law students haven't read section two. And, and, and I think it's important because one of the, uh, goals of the center is to get a 14th Amendment seminar in every law school. I didn't read, we didn't read section two and section three when I was in law school. We read section one like every, and I get it. Section one is chalk full and juicy and critically important. But we're missing something then in the architecture. Section two and section three. So you're right. Section one, birthright citizenship, first line, you know, equal protection of laws, privileges and immunities. We should come back to, even though it's been read out of the 14th Amendment, which is part of this whole project, right? Um, so we need to come back to all those things. But the, but section two and section three are doing something really important. Section two emanates from a, a very vigorous debate about the right to vote. I mean, Frederick Douglass, who I consider to be one of the framers of the 14th Amendment and one of the founders of the, the refounding, the new republic, is outraged that the, that the drafts of the 14th Amendment are not going to include an affirmative right to vote. And there are, there's a conversation among the members of Congress about this question about whether, uh, Black people will, will have an affirmative right to vote. And they decide against it, um, in some ways because of Northern states' resistance that have their own prescriptions around voting, property, and so forth. And so, uh, they don't include an affirmative right to vote. But, but the reason section two is important is that they know that the Southern states will try to keep Black men from voting. At this time, women still cannot vote. They know the Southern states will do this. And so what they come up with is a punishment regime. And so section two essentially says, any state that does not allow Black men over the age of 21, at that time, uh, we didn't have the amendment that lowered the voting age to 18, and women could not vote, uh, at that time, we didn't have the 19th Amendment. And so it says, if a state denies the vote to Black men over the age of 21, their representation will be reduced by the number of people whose vote they suppress. Right? The, the mechanics of it are interesting. I mean, we went with the Voting Rights Act. We could go with that. Um, so mechanics are interesting. But more important is the fact that they're telling us, they're, they're forecasting. They know that the Southern states are going to try to disenfranchise Black men, and they come up with a, a punishment structure. That's important just in terms of architecture of the 14th Amendment. Here's an amendment that explicitly recognizes the ongoing stubbornness of white supremacy,
>> in the South,
>> and tries to guard against it. That's worth teaching. That's important to, to understand.
>> And yet the court, the court's been eviscerating. I mean, which I'd go to Sydney, but I mean, birthright citizenship is up for grabs now. Um, they just gutted the insurrection clause and then the way they've been perverting section five, which is about Congress's ability to, to do something that is extraordinary. What they've done with that, but we'll talk about that later on.
>> It's the, it's the gutting of a whole, you know, a whole amendment. If Congress has the power, going to your point, and Congress, you know, of to enforce both the 14th and 15th Amendments and goes to a, goes through the trouble of holding, you know, hearings over a year to determine whether to reauthorize a statute that it created to fulfill the promise of these two amendments, the Voting Rights Act. And they do a, you know, a set of hearings and they have 90 witnesses and tens of thousands of pages of material. And they determine that indeed the conditions in terms of voter suppression and access to voting and having that ballot count in the states that they chose to, to intensify their scrutiny of, is still warranted so that they reauthorize the Voting Rights Act in 2006. Then how can the Supreme Court come and say, "No, we think, uh, we think that racism is over and we think this, uh, unfairly brands these states." It's, it's astonishing.
>> Yeah.
>> Yeah. The, um, so, um, two points that I'd like to make. One, uh, um, to underscore what you said, which is that the, um, the framers of the 14th Amendment, um, understood that each section of it connected to the, to the whole. And it was, uh, a reflection of the, the, the people who wrote this had lived through the Civil War. It was their experience. They were practical politicians and they knew what was up. They were, uh, they were great realists and they knew what was required in order to do this. So each section is connected, including the, including section three, which the court last year eviscerated in the Anderson case involving the state of Colorado to disqualify, uh, Donald Trump from the ballot, um, because they understood how secession had happened and they understood that it was a series of insurrections in the states, uh, of coup d'états, uh, uh, in order to create the Confederacy and try and destroy the Union. So there's a whole historical understanding beneath all these words. Um, and
>> Can I go, can I go a step further on that historical understanding? Because you're talking about before,
>> before, uh, the Civil War. And I will go a step further and say these amendments were not written in a vacuum. They were written with some data,
>> right? And you know, you've got Andrew Johnson sending his friend Carl Schurz down South to investigate the conditions that are existing down South. He expects a good report. He, because Andrew Johnson is saying, "Let's just let the, the Southern states back in. They don't need loyalty tests and so forth." And Schurz comes back, and I write about this. You know, there's two things he finds that are very stubborn. This is after the war. One is the white supremacist ideology, the belief that Black people must be subject to white people. He talks about the insistence on physical intimidation and whipping. Uh, and he's kind of alarmed by it. And the second thing he's alarmed by is what is the spirit of insurrection,
>> is what he calls the spirit of the tra, what Frederick Douglass calls the spirit of the traitor. And he says that they don't even seem concerned. They, it doesn't seem to bother them. They have no worries about treason.
>> Right? So this is after the war, right? So he knows it's still that, what you're describing is still there. It's still existing in these states that, that Schurz is traveling through. If I can interject for one quick second, you,
>> Yeah. It reminds me that Chief Justice John Roberts is sort of the Andrew Johnson of our time, in so far as he said there's no racism. And Andrew Johnson, there's no more racism. It's just, you know, 150 years later. But anyway, go ahead.
>> Yeah. Well, my other point, which I'd like you to address, is that the, at the same time that the people who wrote that amendment after the Civil War, understanding what the war was about,
>> um,
>> um, t, uh, today, the, um, neo-Confederate, uh, you know, white supremacist, um, counter-revolution against, uh, that we're dealing with right now, which is, you know, crystallized into Trumpism, but is also present in the court, also takes that amendment and the other Civil War amendments as their, um, program to undo.
>> Mhm. And, and they have, um, these amendments give them, um, their objectives of what they need to do to reach them, which is to, um, uh, eviscerate, undo, destroy this essential part of the Constitution that has made us a democracy.
>> Yeah, that's a very heavy and sober observation, and absolutely true. And the reason why it is sober is because there's been so much success. Uh, and, you know, it's been, it's been building for a while. If we, if we took, you know, I, I liken this to the period following Reconstruction, you know, in which you had during Reconstruction this incredible promise of what these amendments could, could do. Uh, and, you know, within 30 years, it's over. And I feel kind of that way about the Civil Rights Movement, which is yet another founding, right? But it is an effort to try to now make, to, to make the 14th Amendment and the 15th Amendment true, and the 13th Amendment true, right? Is to, is to try to revive this. And, uh, but, you know, it's met, as you know, with tremendous resistance, and that resistance really has not abated. It has shapeshifted. It has, there was a period, it went underground into think tanks, uh, and, and other places of strategy, but it never actually, uh, dissipated. And so this feels the same way, uh, in that I always say there were three things that undid Reconstruction, and those three things, I think, are present today. One was violence. The ongoing, relentless pressure of violence, um, was, has to be counted as its own factor. And when you read, you know, the Ku Klux Klan hearings and you realize how the kind of terror under which Black people were living, um, then you understand how powerful the role of violence was. The second thing was congressional inaction. After the Civil Rights Act of 1875, Congress doesn't pass another Civil Rights statute until the Civil Rights Act of 1957. They won't pass anti-lynching legislation. So, Congress that is, you know, moving and grooving, you know, right upon Reconstruction and understands the need to pass the Ku Klux Klan Act, you know, pushed by by President Grant, for sure. Uh, once the Civil Rights Act of 1875 is struck down, we don't hear from Congress again until 1957, where we're now post-Brown and the Civil Rights Movement is beginning. The third is the Supreme Court, right? And if we just look at the four cases, uh, between 1873 and 1896, that take that big chunk out of the 14th Amendment, right? Slaughterhouse, which essentially reads the Privileges and Immunities Clause out of the 14th Amendment. It's so important and so, and augurs poorly, is such a, is such an ominous sign that the first case, first 14th Amendment major 14th Amendment case in the United States Supreme Court is not brought on behalf of Black people, but on behalf of French, uh, French New Orleans, you know, slaughterhouse owners, right? That already gives you a sense that, you know, there's a, there's, uh, something, something afoot here, something wrong.
>> Uh, you know, if we think about the, the, the Cruikshank case, United States versus Cruikshank. This is the case involving the conviction of those, uh, whites involved in the Colfax Massacre, and the Supreme Court's decision that, uh, the Ku Klux Klan Acts cannot cover, uh, these prosecutions and setting these men free who had murdered, murdered in cold blood, Black people who were protecting ballots in a courthouse in Grant Parish, Louisiana. Uh, the Ku Klux Klan was on the run. I mean, the, the Grant was right. We needed this Ku Klux Klan Act. We got it. There were federal prosecutions happening. And then the United States versus Cruikshank case essentially strips the power, uh, away from the Ku Klux Klan Act by si, by by narrowly suggesting what state action means, uh, and that it doesn't mean this kind of mob violence. Then we have the Civil Rights Cases, which strikes down the Civil Rights Act of 1875. The Civil Rights Act of 1875 was a public accommodations, essentially law, that said you could not discriminate in, in theaters and hotels. Uh, and the Supreme Court strikes that down in, in 1883. Uh, and then we, we peak with Plessy versus Ferguson in 1896, which enshrines, uh, separate but equal, and gives us Jim Crow for 60 years. So that's 1896. Um, we start Reconstruction in 1865, and you know, it, it's over. It's over. And so between the violence, the Congress, and the Supreme Court, that's what ends it. And if we think about the, the conditions that Black people live in from 1896 until we get into the heart of the Civil Rights Movement, most Black people are working either as, uh, household domestics in, in white homes, or, um, as sharecroppers in the South, and are, you know, essentially working in, in peonage. Lynching is rampant. More than 5,000 Black people killed in the most horrifying public ways. Uh, all of this is a consequence of the hijacking of the Civil War amendments by these three forces. And so when I feel us back here again, it's tremendously worrisome. Right? The Supreme Court's been taking its cuts for quite some time. It's not just since Trump came into office, but it certainly has accelerated. Um, congressional inaction, check.
>> Yeah.
>> Right. And violence, we're seeing that rise. Check.
>> Absolutely.
>> So, um,
>> And an atmosphere of terror and threats of violence.
>> Yes.
>> Completely, completely supported by the administration. I, this is the most you've, that is an amazing summary of what amounts really, the second redemption. If the, if the Civil Rights Movement was the second Reconstruction, we're now living through the second so-called redemption and the long, long aftermath of that. Sean, explain to us, uh, what redemption is.
So,
>> well, redemption meant, you know, basically, yeah, redemption meant the word referred to the idea among white supremacists that, uh, their states need to be redeemed from Black rule, or they, they call it the blackout of honest government. So, they, they, they kind of euphemized, um, the idea of, of the overthrow of Reconstruction with the idea of redemption, that they were going to redeem white America, basically, which is, they wouldn't have put it that way, but maybe they would have, actually. Some of them were actually upfront about all of that and get rid of, get rid of Reconstruction altogether, which meant getting rid of the results of the Civil War, which meant coming as close as you possibly could to the position of the United States, um, um, in 1860, as, as close as you possibly could. You weren't going to bring slavery back. They weren't going to be able to undo the 13th Amendment, but you could come as close as you possibly could to slavery, and you would come as close as you possibly could to getting rid of the other two amendments, uh, including the rule of law. So, that's what the redemption was. That's their, that's their term for overthrowing Reconstruction. What we're seeing now, I think, is the overthrow of the second Reconstruction, which began, you know, there's a long history to this, too, but it began certainly in earnest in 1954 with Brown v. Board of Education, then the Civil Rights Act, as you said, of, of 1957, on through everything we kind of know about. It looked as if, my goodness, the Civil War has been redeemed, as we've really redeemed things. We've vindicated, um, everything we achieved in the aftermath of the Civil War. Um, and now, and I think they've, they've been trying this ever since 1954, if not before. They knew what was going on.
>> That's the origins of originalism is against Brown.
>> Exactly. Originalism began as a, as a, as a, as a way to try to undo Brown v. Board, um, with, you know, and then interposition comes as well. But they've been doing this for a very long time, really from the beginning. And now, however, in the Trump regime, they see the apotheosis of what they've, they've planned to do all along. And here we're seeing the Supreme Court of your three things, I'm the one that's the one that bugs me the most is being most active. You think about Trump, it's not Trump. It is, but it's his, it's his appointees, but it's them who are being most active, as the court was in this 1880s and so forth with Slaughterhouse. I mean, Slaughterhouse to me is, is, is, is almost benign compared to, you know, a Trumpy U.S., which is the most extraordinary case, I think, in modern history. The overthrow of the Declaration of, of Independence, as much constitution.
>> Why stop at one revolution? Let's get rid of both of them. You know,
>> say, say more about that, Sydney.
>> Well, um, if you just simply read the Declaration of Independence, um, and go through it, you'll see that many of the things in it are what are occurring right now.
>> Um, um, down to, you know, quartering of troops among us, uh, you know, for which I think has a, a political purpose, obviously.
>> Um, uh, you know, the unconstitutional tariffs, for example, are nothing but versions of what the colonists, uh, revolted against in the, uh, you know, in the Stamp Act and, um, the Navigation Act, all these other, you know, impositions.
>> Dodge is another example, sending officers out to do, you know, unlawful things. That's right there in the Declaration. Dodge is that?
>> Yeah. So I mean, um, and of course, um, uh, Lincoln, particularly, but others also believed, and it was the essence of the political, um, anti-slavery movement, that the Declaration of Independence was integral to the Constitution. And that became, as you know, uh, you know, the basis of the Civil War amendments to turn that into law. So, um, Lincoln, uh, called it, um, uh, the apple of gold, um, in the silver frame. So, and that's what the de, so that they're down to overthrowing the Declaration, which is the very basis of the creation of what we call the United States.
>> Um, not simply, you know, they're going all the way back to the beginning, uh, uh, uh, to do this. Uh, I just want to, um, make a point, uh, off of one of your observations about, um, the strategy used, um, to overthrow Reconstruction in those particularly those, uh, three cases that led to Plessy, which is that they systematically used the Civil War amendments as their blueprint and cynically turned them against their meaning.
>> Right? Um, and the same thing is going on now. You can, you might, uh, uh, uh, you know, case by case, piece by piece, I guess you can go back to Bush v. Gore, or even before. But, um, now it's reaching a crescendo. I think the concept of reverse discrimination is, is another, you know, I mean, the whole concept of, it's basically turning on its head the intentions of the 14th Amendment, that now, now you can't remedy this thing, you know, you can't, you, so it essentially doesn't matter, you know, because you can't remedy it, because if you remedy it, then that's a form of discrimination.
>> Hold on.
>> So we see it. Let's talk about this for a minute, uh, for a bit. Um, is the entire assault on birthright citizenship? And, and let's unpack that.
>> Yeah.
>> If you would, including,
>> um, you know, Trump's executive order and his idea, his proposal to, uh, reopen the, the census, and what that means.
>> Oh, goodness.
>> If you would. Well, so first of all, just as a matter of architecture, the idea that a president would issue an executive order that would overturn the words of a constitutional amendment is, uh, as close as it gets to an abuse of power, if ever there was one. And it wouldn't matter so much if it were simply laughed off. Um, but it, it wasn't, and the Supreme Court has kept it alive. Um, and that's what makes it so horrifying. So, President Trump purports to change the meaning of birthright citizenship and to suggest that those who are born, children who are born in the United States who do not have at least one parent who is a lawful permanent resident or citizen is not entitled to birthright citizenship. Um, this is contrary not only to the 14th Amendment's explicit words, but to the Supreme Court's interpretation of those words in the Wong Kim Ark case in 1898. Um, and it's kind of shocking that, you know, every district court who has, has heard the case has, uh, uh, ruled in favor of the plaintiffs and said Trump can't do this. But the Supreme Court has kept this going. Uh, they've kept it going on the theory first of the nationwide injunction. We will see what happens with, now that there's a, a class action that's certified. But the idea that they would even keep this alive feels very Reconstruction Congress-like, and actually is incredibly damaging and quite appalling. The framers of, of, of the 14th Amendment understood that birthright citizenship would be extended to migrants. Trump likes to say, what did he say at his last press conference about this? That it was designed for the babies of slaves. He just likes saying the word slaves a lot. Um, nobody was talking about babies at the time of birthright citizenship. Uh, it, it was designed to ensure that Black people would be full citizens, and it was designed to reverse the Dred Scott decision, in which the Supreme Court had determined, led by Chief Justice Roger Taney, that Black people not only were not citizens of this country or of states, and but could not be citizens. So, not only were enslaved people not citizens, but even free Black people were rendered stateless by the Dred Scott decision. So, the birthright citizenship clause, the first line of the 14th Amendment, is designed to set things to right. 13th Amendment has abolished slavery. But now, what is the status of these people? Well, Dred Scott says they are not citizens and cannot be citizens. So, the first thing you have to do before you get to voting and equal rights and due process and all that stuff is to make sure that they are citizens. And they, the, the Reconstruction Congress had tried to do that with the Civil Rights Act of 1866, but the concern was that was a statute and it could easily be overturned by successive congresses. So they understand that they need to protect and ensure Black citizenship by including it in the Constitution. But they have conversations about the extension of it to what we would call migrants. Right? There are representatives who raise their concerns about, uh, a disfavored migrant group, right? There is this, you know, shall we be overrun in California by, uh, these individuals? Shall we have to succumb to their customs? And they're talking about the Chinese,
>> right?
>> Uh, there, there's one, there's one representative who talks about, you know, gypsies, what what used to be referred to as gypsies and what we call Roma now. But, you know, and, and there's, you know, there there's debate back and forth of people saying, where, like, I didn't understand there was a gypsy takeover. But this congressman says, what about all the gypsies in Pennsylvania? What about all of the Chinese in California? And he's countered by representatives who say, yes, we understand. Remember, at this time, Chinese people who are working here cannot become citizens. Right? We have the Chinese Exclusion Act passed in 188, I want to say two, 1882. So Chinese people, laborers cannot even become citizens, right? Um, and, and they are the disfavored group. We see this in, in later in Plessy, in the, the conversation about colorblindness that, you know, says there's a group of people so different from us. So there's this long-standing, uh, uh, resistance to the Chinese being citizens. But in this debate about birthright citizenship, you have people raising this, and they are countered by other members of the, the Congress who say, what we are saying is, we understand that the laborers are not citizens, but if they have a child who is born here, that the children of laborers born here will be citizens. So they know what they're doing. It's no different than the way, uh, Trump is attempting to talk about Latino immigrants who are the children of people who are undocumented but who are working here. No different. Then with regard to the census, okay, then first of all, I should say, we have the Wong Kim Ark case in 1898, in which you actually have a, a child who's born here of Chinese laborers, and the question is whether he is a citizen, and the Supreme Court is definitive. Now, the language that they're hanging this on is this language in the 14th Amendment, that that first sentence, birthright citizenship. All persons born in the United States are citizens of the United States. All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state in which they reside. And in the Wong Kim Ark case, they're hanging their hat on that language, subject to the jurisdiction thereof. Right? And that perhaps this young man is not subject to the jurisdiction of the United States simply by virtue of being born here, because his parents are foreign nationals who are subject to the jurisdiction of China. And, and Trump is reviving this same argument. And it's made very clear to the Supreme Court at that time that subject to the jurisdiction thereof meant, uh, number one, the children of diplomats, because diplomats are, if you know anything about diplomatic immunity, they are subject to the jurisdiction of their, uh, sovereign, of their country, which is why they cannot be subject to the jurisdiction of U.S. law. And, uh, prisoners, the children of prisoners of war who are held here on U.S. soil. And even though there's a provision about, you know, Indians not taxed, there is a concern about Indians and make Native Americans, we would say, and not wanting, actually not wanting to abridge, because there are many Native Americans who don't want U.S. citizenship, they're members of their tribe, and they don't want this 14th Amendment language to in any way be used to upend their tribal sovereignty. Right? That's really what it's about. It's, it's not about anything else. And the Supreme Court affirms this in 1898 in Wong Kim Ark. Now, we have Trump deciding that he's going to redo the census. So first of all, the census is actually a constitutional requirement. It happens every 10 years. Every 10 years we count the number of people in the country for purposes of apportionment. It is, it is, uh, every 10 years. Sometimes litigation happens, you know, in between, but we don't redo the census, and the president certainly doesn't declare that we shall do the census. The decennial census is a constitutional provision. And of course, we know that in the first Constitution, the three-fifths compromise for apportionment purposes said, we'll count all the people and three-fifths of all other persons. They're referring to enslaved people to ensure that the South doesn't benefit, overly benefit in representation from their enslaved population, who of course cannot vote, but allowing them to benefit at least fractionally. That's overturned in the 14th Amendment. The first sentence of section two of the 14th Amendment says that representatives shall be counted and apportioned to the states based on the whole number of persons, not citizens, persons. Whole number of persons. Now, we've got senators, United States senators like Senator Hagerty from Texas, who's also a lawyer, by the way, saying, "Well, there's a question about whether some are counted as a fraction." No, sir, there is not a question. Section two of the 14th Amendment.
>> But this is where we are. This is how much, to go back to where I started. The 14th Amendment has been so effectively obscured that a United States senator can say something that on its face is preposterous, right, and not be laughed out of the room because so many Americans don't know what the 14th Amendment did, don't know its significance. And so they can seed the environment and the atmosphere with these ideas that are otherwise blatantly unconstitutional. I wrote about this, gosh, maybe 10 or 20 years ago, in in 2010, I wrote about, you know, treating birthright citizenship as though it's policy,
>> because at that time, we had senators like Lindsey Graham saying, we're going to overturn birthright citizen. Well, are you, are you having a constitutional convention? Like, what is, but it was described as though it was on a policy platform, as though we could just decide. But having seeded that, you look at the latest Pew poll, and you see that Americans are divided on birthright citizenship. That's like saying Americans are divided on the First Amendment. Americans are divided on freedom of, of religious expression. Americans are divided on the Second. Are we divided about a constitutional provision?
>> Yeah. This is not a matter of, of opinion. It's a matter of
>> ignorance by seeding these ideas.
>> Yeah, that's right. But one would think, though, that the Supreme Court,
>> maybe knows a thing or two about the Constitution, and yet they've been already eviscerating the 14th Amendment as is. I don't really trust the Supreme Court with, with
>> I, I don't either. I wrote a piece, um, in my, you know, on Sub, on my my Substack newsletter, uh, actually a very painful piece to write, which I had refrained from even, I, I wasn't there. I wasn't there. I went to the argument in the birthright citizenship case, and, um, but I finally was driven to write this piece called, um, Facing This Court. And in that piece, I say what I now believe, which is that there are likely a majority of justices on the court who are prepared to weaken or to, um, affirm Trump's attempt to weaken birthright citizenship. It doesn't make sense that you would allow this to go forward, that you would allow the threat of being stateless to hang over the heads of people. This is a very serious thing. And what pushed me to this was when the court, um, on the emergency docket, meaning that the merits of the case were not yet before them,
>> allowed the administration to go forward with dismantling the Department of Education. Because there's no question that a, um, a, a federal agency created by Congress can only be dismantled by Congress.
>> And the fact that the court would, on the emergency docket, not with the merits before them, I mean, you're not going to be able to get the department back if on the merits it's determined that Trump does not have the power to dismantle the Department of Education. So, it's pretty cynical on the emergency docket to, to allow it to go forward unless you believe that Trump is likely to, uh, succeed on the merits. And once I read that order, it, it, it, I mean, the evidence is all there. It, it led me to back to birthright citizenship. Who would allow a constitutional provision of that magnitude, going to the very heart of who is American? Who would allow the president to go forward with that, um, unless they believed that he was likely to succeed? And this just alarmed me. That is not necessarily the feeling I got at the argument. But now I started to look back at the argument and the silence at, at the argument. Justice Sotomayor and especially Justice Kagan and Sotomayor and Jackson were really spinning out the consequences of, of allowing this law to go forward, the consequences for, for people and what it would mean for states and what it would mean for individuals, and they were spinning it out. And, and Justice Kagan, especially, was talking about how all the district courts are, you know, you're losing in every court, she said to the administration, and you're losing because you should lose because it's preposterous, because it's obviously unconstitutional. But what upon reflection occurred to me was the silence of the conservative, the justices in the conservative majority seemed ominous, after the education, the Department of Education decision. It seemed ominous that no one co-signed, right, her point. She was doing it through hypotheticals. But, but, you know, what should we do when you've lost all these cases, and why would you, you know, how would you, how would this case ever get back to us? You know, all you have to do is never take it up to us, and you can continue doing that, right? She had a whole thing. And the more I thought about it after the, uh, Department of Education decision, the more I came to the conclusion that they really are that cynical.
>> Yeah.
>> Yeah. Well, um,
>> I hope not. I, I mean, there's still hope, of course. I don't, I don't,
>> I don't, but I fear it. I fear it.
>> I think you fear it justified.
>> Yes. Well, for those who, um, understand the history, uh, for whom, uh, those who know that the past is, uh, very much with us, um, and is a living presence, and that we have to grapple with it ourselves, just as people before us did. Um, I want to thank you for participating in the Court of History. Uh, we will return. There's going to be much to discuss. The, um, there'll be new decisions, opinions, uh, and new cases, and we would dearly love to have you back to,
>> consider yourself a friend of the court.
>> Part two on the Lost Cause narrative and how that's been,
>> very good. Very good.
>> We will definitely, um, pursue everything going forward. So, thank you very much for appearing with us, um, and for this session of the Court of History, and on behalf of, um, Sean Wensz, um, we are adjourned. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hottake, whether it's a court filing or an oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.
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