We Thought Y’all Loved the Constitution?

**Birthright citizenship is under attack—but not through the proper channels of constitutional amendment or debate. Instead, some are cheering for a president to overturn it with an executive order. We thought y’all loved the Constitution? What happens when the same pen comes for the First Amendment?** Many Americans are cheering a move that undermines the very Constitution they claim to protect. Here’s how the Dred Scott echo rings in today’s immigration debate—and why it threatens all our rights. It is one of the most perplexing phenomena of American political life today: so many of the individuals who most vocally proclaim their zeal for “constitutional integrity” appear equally enthusiastic about an idea that openly defies both the text and spirit of the Constitution itself. Take, for instance, the argument—floated over the last few years with increasing bravado—that the President, with a mere stroke of a pen, could nullify or curtail the Fourteenth Amendment’s birthright citizenship guarantee. The same faction that waxes eloquent about the sacredness of the Framers’ intent and the sanctity of original meaning has, in certain quarters, reacted with unreserved glee to the proposition that, if only we had a President “tough enough,” he could unilaterally override one of the Constitution’s most clearly worded safeguards. It’s a precarious position, and if we accept that logic, then there is nothing to stop an equally cavalier chief executive from using an executive order to suspend the First Amendment—or the Second, or any other that doesn’t suit the occupant of the White House on a given day. In short, it is a spectacularly misguided principle, one that would unravel not just the Fourteenth Amendment but also the very foundation of constitutional governance. This eagerness among certain supporters of the 45th President to sanction unilateral constitutional revision by executive fiat rests on a precarious argument about the Citizenship Clause of the Fourteenth Amendment. That clause declares that “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.” It is almost quaint in its clarity. Simple reading comprehension suggests it bestows American citizenship upon individuals born on U.S. soil, with a narrow set of exceptions—namely children of diplomats or others who, by virtue of official immunity, are not truly governed by U.S. law. Yet the new breed of birthright skeptics contends that children of undocumented immigrants do not belong to this category of “persons” so protected, because, allegedly, their parents are not “subject to the jurisdiction” of the United States. Therefore, their logic goes, a President determined to “re-interpret” the Fourteenth Amendment could direct executive agencies not to issue the routine documents—Social Security numbers or passports, for instance—that typically reflect a child’s citizenship status. Superficially, this seems to be a plausible legal debate. But if you prod it even slightly, the entire enterprise collapses into a historical irony so grand it verges on farce. The phrase “subject to the jurisdiction,” after all, has a checkered past. It was invoked more than a century ago to exclude from citizenship precisely those whom the Fourteenth Amendment was intended to protect. The Amendment itself was ratified in the post–Civil War era, a direct response to the Supreme Court’s infamous 1857 _Dred Scott_ decision, which had declared that African Americans—enslaved or free—could not be citizens of the United States. By adopting unequivocal birthright citizenship, the Reconstruction Congress sought to bury _Dred Scott_ once and for all. Yet, in one of those sly twists of legal history, the phrase that was intended to codify inclusion—“subject to the jurisdiction”—was later weaponized to justify a smaller, more cramped definition of who is American. Native Americans in particular were targeted by the Supreme Court’s 1884 decision, _Elk v. Wilkins_, which reasoned that tribal allegiances placed members of Indigenous nations outside the scope of the Amendment, until Congress ultimately mooted that analysis with the Indian Citizenship Act of 1924. The folks who now insist that they can reinterpret the Constitution to exclude certain children born on U.S. soil are essentially reviving an argument from that earlier era—an argument that was used to keep African Americans, Native Americans, or others from enjoying the privileges or immunities the Amendment sought to guarantee. In other words, they’re trying to take a tool that once helped deny African Americans and Indigenous people their rightful place in the national fabric and use it again, this time to exclude the children of undocumented immigrants. That’s not just irony; it’s an offensive irony. It’s as though someone rummaged through old, discredited legal opinions for a tactic that, in a modern democracy, we all ought to regard as long since consigned to the dustbin of segregationist history. Perhaps the most remarkable feature of this storyline is how certain corners of the electorate seem genuinely to believe that such a maneuver could stand. Their confidence may stem from the veneration of “executive power,” a misguided notion that the President, as Commander in Chief, can do anything so long as he has the will to sign an order. It overlooks the central premise of American government—that we are guided by a Constitution designed to withstand the whim of any single officeholder, no matter how popular. Moreover, the entire proposition begs the question: How many other amendments or constitutional protections are they willing to see eviscerated by the same method? This is not rhetorical flourish. Once you open the door for a President to set aside the plain text of the Fourteenth Amendment, there is no logical barrier to the same President deciding that an executive order could reinterpret the First Amendment—perhaps to muzzle critics or hamper a free press. Or, if it suits a future White House occupant, maybe the same executive prerogative could be used to hollow out the Second Amendment. It doesn’t matter whether one personally supports or abhors gun rights; if you’ve already accepted that executive re-interpretation can demolish one fundamental piece of constitutional bedrock, you can’t credibly cry foul when another piece gets the same treatment. Here is where we must address two variations of the argument—and their subtle but important differences. One variant attempts to shoehorn undocumented immigrants into the category of “hostile occupying force.” The other insists on the narrower reading of “subject to the jurisdiction,” claiming that undocumented immigrants do not pledge full allegiance to the United States and thereby remain outside its legal domain. The “hostile occupying force” narrative is in some ways the more outlandish of the two, though it has been floated in rhetorical asides and political stump speeches—often couched in language about “invasions,” “caravans,” or “army-like surges” at the southern border. This argument tries to mimic the recognized legal exceptions for foreign troops or occupying powers. Under ordinary interpretations, the children of an actual foreign military occupying American territory would not automatically become citizens at birth, because that occupying army would not be abiding by the civil law of the United States but rather imposing its own, presumably in defiance of U.S. authority. But that scenario is wholly inapplicable to undocumented immigrants. Far from conquering or imposing their sovereignty, these individuals are subject to arrest, deportation, criminal prosecution, taxation, and every other dimension of our laws. They do not hold diplomatic status, nor do they brandish the might of a foreign state behind them to claim territorial control. The idea that they constitute a “hostile occupying force” is not merely inaccurate; it’s so legally indefensible that one strains to see it as anything more than propaganda. It conjures up visions of barbarians at the gate, stoking fear and anxiety rather than offering a serious legal rationale. The second variant has, at times, been advanced by legal scholars of a more academic stripe. In this narrower interpretation of “subject to the jurisdiction,” the suggestion is that if parents are here illegally—i.e., they do not have the government’s formal permission to reside in the United States—then perhaps they are not truly governed by its laws in the manner contemplated by the Fourteenth Amendment. This is, of course, an argument belied by everyday realities: an undocumented immigrant can be arrested, tried, convicted, imprisoned, or otherwise subjected to the enforcement mechanisms of the American legal system. If that is not being “subject to the jurisdiction” of the United States, then what on earth is? If you can be hauled away in handcuffs, it’s a bit of a stretch to proclaim you “outside” the law’s domain. The historical lineage of this narrower reading leads us back to _Elk v. Wilkins_, where the Supreme Court concluded that an individual born into a Native American tribe was not automatically a U.S. citizen even if he resided in mainstream American society. At the time, the Court reasoned that his tribal affiliation demonstrated he did not owe “immediate allegiance” to the United States. As a result, the child born in such circumstances, while physically under the dominion of U.S. soil, was not under its exclusive jurisdiction. This line of thinking was soon recognized as an injustice in direct tension with the promises of Reconstruction, and Congress eventually overrode it legislatively with the Indian Citizenship Act of 1924. Even so, the relic of that era remains in the textual skeleton of legal briefs and dusty old precedent, enough for modern opportunists to brandish it as if it were newly minted law. But the offensiveness and irony run still deeper. Consider that the Fourteenth Amendment was adopted to repudiate the Supreme Court’s dreadful stance in _Dred Scott_, which declared that African Americans could never be citizens of the United States. The impetus behind birthright citizenship was to ensure that no class of persons, born and raised under American governance, could be relegated to second-class or non-citizen status by legal legerdemain. The Amendment’s text was supposed to be ironclad in its clarity. But soon enough, creative legal minds of the nineteenth century found ways to turn “subject to the jurisdiction” into a wedge that pried certain groups out of the Amendment’s protective embrace. They tried it on African Americans, they tried it on Indigenous peoples, and occasionally other minority groups found themselves targeted by the same rhetorical gambit. Eventually, a century of civil rights struggles hammered home the notion that if you’re here, if you’re abiding by (or at least subject to) this nation’s laws, if you were born on this soil, you are an American. That principle was tested time and time again, and it remained one of the bedrock pillars of the country’s post–Civil War identity. Yet here we are, in the early decades of the 21st century, watching some political circles attempt to resurrect the narrow reading that was rightly interred by the courts and by constitutional custom. Indeed, it’s not just an intellectual exercise but an actual policy proposition that an executive order could instruct agencies to disregard the citizenship of American-born children with undocumented parents. It’s painful to reflect on how quickly certain quarters can shift from flaunting their professed reverence for the Founding Fathers’ original intent, or for the post–Civil War Reconstruction amendments, to discarding that carefully wrought legal architecture the moment it suits an anti-immigrant agenda. A cynic might say it’s more about cynically harnessing public sentiment and fear than about the rule of law or principle. And a cynic would likely be right. So, is it all bluster, or is there any chance of success in the courts? By practically every credible account, an executive order of this sort would be immediately challenged and promptly halted by injunction. The jurisprudential track record—especially after the Supreme Court’s 1898 ruling in _United States v. Wong Kim Ark_—establishes in no uncertain terms that children born on American soil, regardless of their parents’ immigration status, inherit citizenship at birth. The only recognized exceptions involve children of diplomats or foreign officials with formal immunity, or occasional analogous scenarios (the hypothetical occupant force). These exceptions are exceedingly narrow and wholly inapplicable to average undocumented immigrants, who have no such immunity and are entirely subject to U.S. jurisdiction. Nevertheless, the rhetorical potency of the notion has proven enough to galvanize voters who either sincerely believe—or prefer to believe—that a presidential pen stroke can reconfigure our entire constitutional framework. Part of this appeal may lie in the idea that the process of amending the Constitution is seen as slow and frustrating. Why go through the rigor of a constitutional amendment—a formidable hurdle that requires supermajorities in Congress and ratification by the states—when you can just reinterpret an existing clause by using some arcane logic about “hostile occupiers” or “insufficient allegiance”? One might call it legislative convenience, if not outright laziness, to bypass the democratic pathways that the Framers (and subsequent generations) established for major constitutional changes. But a commitment to the real Constitution means understanding and abiding by that process. Without it, we reduce the Constitution to a fluid set of phrases at the mercy of whichever official happens to have the biggest microphone. Furthermore, as we have noted, the logical ramifications of allowing such an executive power grab are profound. If you endorse the principle that the President can “reinterpret” the Fourteenth Amendment in a narrow, ephemeral manner, you have effectively anointed the presidency with the capacity to do the same for every other constitutional provision—however unthinkable it might seem today. Could the President, with a flick of the pen, decide that the First Amendment does not protect certain categories of speech that the executive branch finds threatening or offensive? Could the President instruct law enforcement agencies to treat the Second Amendment as though it applied only to members of a formal militia, ignoring Supreme Court precedent to the contrary? Could the President define new conditions for due process that circumvent everything from the Sixth Amendment’s right to counsel to the Eighth Amendment’s prohibition of cruel and unusual punishment? If you have shrugged at the idea of overriding the Fourteenth Amendment with an executive order, you have lost the intellectual legitimacy to object when a different President—perhaps from an opposing party—takes aim at an amendment you hold dear. This is not hyperbole; it is the essence of checks and balances. We do not allow a single branch, much less a single individual, to circumvent the plain text of the Constitution. This system might be cumbersome and messy, but it is precisely the system that has allowed the American experiment to persist under the same guiding document for centuries. The Constitution transcends momentary impulses, an anchor in times of political tumult. When an especially zealous or impulsive figure arises, the constraints of the Constitution are meant to withstand that figure’s attempts to tamper with fundamental rights. All of which brings us back to the bizarre posture of self-styled patriots championing an unpatriotic approach to governance. To be sure, many of these individuals undoubtedly treasure certain constitutional rights—free speech, the right to bear arms, protections against government overreach, or whatever else they regard as essential. But in their eagerness to curtail immigration, they have collectively embraced a rationale that, if allowed to stand, would gut those other cherished rights as well. They imagine the Constitution as pliable when it suits their favored policy outcomes—and immutable otherwise. That is not how the rule of law works. Yes, the entire situation is laced with irony. Indeed, it is laced with a kind of tragic irony, considering the Fourteenth Amendment’s original mission to secure citizenship for the historically oppressed, chiefly African Americans, who had for so long been denied it. Now we see factions that claim the mantle of “traditional American values” effectively using the skeleton of those old arguments—ones that were once leveled against African Americans and Native Americans—to exclude a new disfavored group. The burden of these old legal ghosts, centuries old, is dragged forward. Like a stage trick, these discredited precedents and archaic exceptions are dusted off, paraded around to give the veneer of legal sophistication, and used to stoke fear and anger. But beneath that thin layer of rhetorical theatrics, there is no plausible argument for ignoring the Constitution’s direct text. Ultimately, if the idea of birthright citizenship truly offends the national conscience, there is a process to rectify that: a constitutional amendment. That’s how we added and revised Amendments in the past—the Thirteenth, Fourteenth, Fifteenth, the Nineteenth, the Twenty-Sixth, and so on. It is a solemn, often difficult undertaking—requiring intense political debate and near-national consensus. Amending the Constitution is not for the impatient or faint of heart, which is precisely the point. Fundamental changes should never be easy. They require broad buy-in, and they force the public to consider consequences carefully before rearranging the nation’s guiding charter. The willingness to short-circuit that process with an executive order is the antithesis of the constitutional devotion so often trumpeted on the campaign trail. If there is a silver lining, it may be that such a transparently unconstitutional move would, in all likelihood, be swiftly nullified by the courts. One can hope that in the ensuing legal battles, the American public might reacquaint itself with the historical significance of the Fourteenth Amendment—its underpinnings in the aftermath of the Civil War, its role in overturning _Dred Scott_, and its power in forging an inclusive national identity. But the better course, obviously, would be for lawmakers and the electorate to reject such flights of fancy at the outset—refusing to cede that the President can so casually override constitutional text, refusing to countenance the twisted revival of an archaic, exclusive reading of “subject to the jurisdiction,” and refusing to indulge in the grandiose illusions that fuel it.

In the end, the spectacle of a group touting “constitutional fidelity” while urging the immediate suspension of constitutional provisions is more than mere hypocrisy. It tests our civic literacy and our capacity to remember that the Constitution exists precisely to protect us from the transitory passions of the moment—even those that come wrapped in patriotic slogans or appeals to law and order. The essential irony is that in the United States, the rule of law is meant to limit government power, not grant it unbridled license. Once a President can strip away a fundamental liberty by decree, every other liberty is perched on a similarly precarious ledge. Birthright citizenship is the canary in the coal mine: should we allow an executive order to eviscerate a right so explicitly guaranteed by the Constitution’s text, then no right stands safe. And so, we circle back to the question that looms ominously over every iteration of this debate: if we let one President set aside part of the Fourteenth Amendment because he personally finds it inconvenient, what recourse do we have when the next President decides that the First Amendment is an equally unwelcome obstacle to some personal or partisan ambition? The answer is chillingly simple: we would have none. We would have conceded the premise that the Constitution is subject to an executive’s whim, a notion that resonates more with autocracy than with a constitutional republic. That is the bitter, offensive irony: a gambit that started life as an attempt to preserve a narrow version of “American identity” would, in practice, imperil all of our identities by obliterating the stable constitutional order we so desperately need. It is a legacy unworthy of a nation that prides itself on democracy and the rule of law—and certainly unworthy of the men and women who originally fought to give the Fourteenth Amendment its robust and inclusive promise. --- ### Read More: [Crawling Through the Sewage Pipe of Nationalism: America’s Shawshank Redemption Toward a New Global Order](https://xentities.blogspot.com/2025/01/the-duality-of-rhetoric-and-action-in.html) ---
## Does Trump believes in a global vision of unity? I do. **...by getting the public accustomed to radically dismantling the very Constitution they claim to protect, they paving the way for a more global future.** This executive order fever dream; it’s not going to happen. It’s a political stage prop—a rallying cry that keeps you cheering and meme-posting while the Constitution you profess to cherish remains entirely unscathed by these theatrical flourishes. And here’s the twist: the very man you believe is battling “globalism” is, in fact, one of its chief architects. Yes, you read that correctly. He’s constructing a new global framework that will one day overshadow border-fixated squabbles and stale ideologies—and ironically, each time you call for circumventing the Constitution in his name, you accelerate that process by getting the public accustomed to radically dismantling the very Constitution you claim to protect, thereby paving the way for a more global future. By embracing authoritarian flirtations under the guise of patriotism, you expedite the demise of the very old paradigms you sought to protect. In doing so, you accelerate our march toward a unified global order where these parochial fights become moot. The best part? Your ongoing crusade against this constitutional protection—your longing for an executive decree to “fix” birthright citizenship—merely greases the wheels of the global future you claim to fear, by getting the public accustom to radically dismantling, the very constitution you claim to want to protect thereby paving the way to a more global future. So continue down this path. Keep exalting the myth of an imperial presidency as if that’s how American governance was ever supposed to work. The more you cheer, the more you ready the collective consciousness for radical realignments—realignments that will eventually render these arguments obsolete. A unified global system is rising, buoyed (in part) by the very authoritarian impulses you think will preserve the status quo. The irony is delicious: the faster you rile yourselves up, the faster we reach that transnational horizon. In short, keep fighting this phantom battle—it’s only speeding us toward tomorrow’s welcomed global order. Some day soon, your simmering pot of nationalism will have turned tepid, and you’ll wonder how it all changed under the heat of your own fervor. Welcome to the new reality you helped create.

Bryant McGill · We Thought Y’all Loved the Constitution?