UB Law Faculty Weigh in on 14th Amendment Debate
November 5, 2018
Contact: Office of Government and Public Affairs
Is the 14th Amendment to the U.S. Constitution in play? Three professors from the University of Baltimore say no—despite recent statements in the media from President Trump. While these faculty members range in their thinking about the impact of the amendment—which since its adoption in 1868 has stood as a bulwark for equal protection, citizenship rights and more—they are confident that it is here to stay. Still, Trump says he can, by executive order, cast off at least that part of the amendment that declares all persons born on U.S. soil to be U.S. citizens, regardless of where their parents were born or what their citizenship status might be.
Writing in The Hill, Prof. Kimberly Wehle disagrees:
"The Constitution is the boss of the legal bosses. It binds everyone—including members of Congress, federal judges, and the president. Congress passes laws, but so do executive branch agencies (via regulations) and the president (via executive orders). Federal judges decide whether the actions of the other two branches comport with the Constitution."
Garrett Epps, also a professor, writes in The Atlantic that "birthright citizenship" is not a happenstance of the amendment, and not something to be taken lightly by any president.
The 14th Amendment "is a key to the egalitarian, democratic Constitution that emerged from the slaughter of the Civil War," Epps says. "In 1857, the pro-slavery majority of the Supreme Court held that citizenship was racial; in Dred Scott v. Sandford, Chief Justice Roger B. Taney wrote that people of African descent were not American citizens—and never could become citizens, even through an act of Congress. At the time the Constitution was written, he wrote, black people were 'regarded [by whites] as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.'"
Writing in The Baltimore Sun, Steven P. Grossman, the Dean Julius Isaacson Professor at the UB School of Law, says: "President Trump declares that he has been told that, by executive order, he can end the right of those born in this country to be declared American citizens. The first sentence of the 14th Amendment to the Constitution reads: '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'. Now, I don't claim to be a strict constructionist, but I do know what 'all' means, I do know what 'born' means, and I do know what 'citizen' means. He who supposedly nominates only judges who abide strictly by the wording of the Constitution now proposes that, by a stroke of his pen, he can change the 14th Amendment. Go figure."
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