This website is no longer actively maintained
Some material and features may be unavailable

In perspective: Dred Scott and the Fourteenth Amendment

In April 1866, the Congress passed a Civil Rights Act declaring that people born in the United States were to be considered citizens. The bill was designed to extend citizenship protections to freed slaves. President Andrew Johnson promptly vetoed the law — only to have the Radical Republicans in Congress override him in one of the first great showdowns that would end in Johnson’s impeachment.

Worried that subsequent legislatures might take Johnson’s position, supporters of civil rights pushed ahead two years later with the 14th amendment, which enshrined birthright citizenship in the Constitution.  The point: that no person born in the United States could ever be treated like Dred Scott, a slave who had sued for his freedom — and been informed by the Supreme Court he could never be a citizen.

This history came to mind this week as the Republican Party of the 21st century began to talk openly about repealing the Fourteenth Amendment as part its campaign to curb illegal immigration.  John McCain and Jon Kyl of Arizona, Lindsey Graham of South Carolina, Mitch McConnell of Kentucky, John Boehner of Ohio — or Speaker Boehner, as he could become if the Republicans win the House this November — are mulling the issue of birthright citizenship.

Some Republicans say they simply want to explore the possibilities of ending birthright citizenship in congressional hearings.  Fair enough, for hearings will reaffirm that the intent of the clause — the original intent — was to protect former slaves and, later, Chinese immigrants who were being discriminated against in the not-so-subtly-entitled Chinese Exclusion Act of 1882.  By putting birthright citizenship in the Constitution, America offered perpetual protection to minorities who might not have the wherewithal to fend off attacks of the moment.  Not a bad thing, that.

Among the ironies at work now is the citizenship clause has the kind of pedigree that Republicans usually like, for it is rooted in English common law.  Precedent, however, is not dispositive: if it were, then no progress would be possible.  That is why recovering the spirit of a law is important.  The spirit of the Civil Rights Act of 1866 and of the Fourteenth Amendment was about inclusion and fair play — two things we could use more of in Washington.

More In Perspective: Jon Meacham

  • thumb
    Memorial Day every day
    Beyond the backyard BBQ: Honor and aid those who have served.
  • Fast and too furious?
    Can accuracy and the demand for instant information coexist in the media?
  • thumb
      Steinbeck's Salinas Valley
    John Steinbeck's hometown came to worldwide notice through the Grapes of Wrath. Not all city fathers were pleased by the portrait. Explore what has changed and what remains the same in Salinas.


  • Bob

    The segment on the 14th amendment stood out to me for what it did not say. No where in the segment was it said that the concern is the babies of ILLEGAL people in the US. The amendment says it is referring to a person UNDER THE JURISDICTION of the state who gives birth. Is a person who is in the US illegally under the jurisdiction? I have my doubts. I think it is worthy of a debate and maybe a court ruling. If the amendment is modified to state a LEGAL status is required, maybe some of the incentive to “break into” the US would be taken away.

  • D. Nelson

    Those who know Meacham from his past liberal positions realize his verbal rendering on the conservative position on illegal alien & the 14th Amendment would be 180 degrees different if the the Hispanics voted republican… Meacham with you it’s about politics… but why on PBS… with public money.. OPS liberal are used to spending our money & only want more of it…..

  • tony coccia

    Although I generally enjoy PBS political programming [C-Span is the only other channel I watch for political news], there can be no doubt that this taxpayer supported outlet has left wind sympathies that many of us find objectionable.

    I really looked forward to the debut of Need to Know, and generally find it to be quality programming. However, the somewhat inept comic at the end of the show has been very disappointing in both his fairly obvious political leanings and in the quality of his material. The laughter from the out-of-view hosts [I presume] is, at the very least, annoying.

    But Meacham’s comments tonight regarding the 14th amendment were really upsetting. To not even mention the fact that there are several ways of interpreting the “under the jurisdiction…..” clause in the amendment either reveals Meacham’s unpardonable ignorance of the subject or it is a departure from the expectation of rational and objective inquiry that I and other supporters of PBS have a right to. Please rectify this omission in next week’s show.

  • mark price

    I thought Bill Moyers retired…

    Yes, it’s the evil conservatives’ fault, whatever this show is talking about . At least author pays homage to the GOP back during the Jackson admin as ‘radicals’.. which is a good thing right? And how does someone understand original intent in 1860′s when they don’t properly characterize intent in 21st century debates?
    This piece is such spin; and the mischaracterization of the intent of those who are for redressing the 14th is either due to idealogical tunnel vision or sheer partisan subterfuge.

    Clue here >> “Precedent, however, is not dispositive: if it were, then no progress would be possible. That is why recovering the spirit of a law is important.” Do these prior statements jibe?
    And >> “The spirit of the Civil Rights Act of 1866 and of the Fourteenth Amendment was about inclusion and fair play” — I guess if someone really believes this is the whole truth, I would go for the tunnel vision.

    thank you for your time. Regards.

  • chuckvw

    Great comment. It astonishes me as an older person to watch the line shift between what is acceptable and unacceptable in terms of ethnic and racial prejudice. The 14th Amendment, the Islamic Center in NYC, Dr. Ruth’s diarhea of the mouth… Really pretty disturbing.

    The know nothings are enjoying a resurgence. Hypocrites like McCain and Graham play them like a fiddle.

    Thanks for putting the situation in an historical context. Alas, the know nothings don’t do history…

  • Christopher B. Romeo, J.D.

    Yes, people in the United States illegally are *indeed* under the jurisdiction of the United States. If not, they could commit crimes with impunity because we’d not be able to arrest and punish them. Why? If you aren’t under the jurisdiction of the United States, the United States has no legal authority over you. As of today, the only people in the United States who aren’t under the jurisdiction of the United State are foreign diplomats and dignitaries and their families.

  • Ann Glover

    Posse Comitatus, Christian Identity theorists, Freemen, and many other right wing extremists support the idea that there are true citizens of this country, and there are 14th Amendment citizens, Supposedly the former receive their rights from God, and the latter non-true citizens from the 14th Amendment. This push to repeal has roots going further back than our current immigration argument, and is dangerous to our existence as a country.

  • Diane Zumwalt

    Have the illustrious members of Congress (McCain, Kyle and co.) nothing better to do with their time (paid for OUR money) than spend hours working to repeal one of the amendments to the Constitution? Yes, we do have a problem with illegal immigration, but repealing Constitutional rights is not the answer. Hatred (racial, religious, etc) is incidious and growing in this country to the extent that it should frighten us all.

  • Laura Hernandez

    Christopher, THANK YOU. You are the only other person I’ve seen, besides myself, who has pointed this out in numerous threads on this issue. I have also yet to hear any politician or talking head on TV shoot down this stupid misinterpretation when it is constantly brought up as their main defense of not keeping birthright citizenship for all. If you can be prosecuted for a crime by our government, then you are under its jurisdiction. No “doubts” to have, Bob, it’s clear. Same meaning as the local sheriff not being able to pursue over the county line for speeding, or why New York can prosecute a Virginian if the crime was commited in Manhattan. And the reason the 14th Amendment doesn’t specifically say anything about “illegal” immigrants is because there was no such thing. To add that restriction would be the only time we made a change to LIMIT Constitutional rights, except for Prohibition, which of course was repealed after disasterous results and negative unforeseen side-effects. Really, this is a stupid, spiteful attempt to further target an already marginalized population that is least-able to defend itself. Just like the Fugitive Slave Act, Jim Crow Laws, and the Chinese Exclusion Act, the “we’re a nation of laws” mantra doesn’t mean we should continue to enforce unjust and unconstitutional laws, we’re also supposed to be a nation of justice and the ideals of humanity.

  • Keira Welter

    This article is opinion, not fact. If it were facts only, then the words “the kind of pedigree that Republicans usually like”, and “Radical Republicans in Congress” would have never been used.

    Anyone else tired of people who are preaching to be tolerant of others NOT being tolerant of others themselves?

    Talk about ‘do as I say, not as I do’.

  • Bette S Baysinger

    A very smart socially acceptable person who works in social services for the disabled recently used a analogy of this situation that I found to be useful. It is “as if” a wonderful party was planned for 100 guests with a grand spread, but then 10, 000 people showed up. I’ll add many crashed the gate, and that is where it seems unfair to those that didn’t crash the gate.

  • Renee

    Betty S Baysinger, tell that to the Native Americans. I’d love to hear their response.

  • Lauren

    I am sadly surprised at the tone of this piece. Please stick to reporting the facts and not adding your bias and political agenda. Don’t insult our intelligence by leading us to a conclusion rather than letting us judge the facts on our own and coming up with our own opinion.

    Thankfully, I was able to listen to an NPR piece on this same issue that seemed much more balanced and free of bias than this small snippet of opinion. I was interested to learn that we are by far the minority in even allowing birthright citizenship. No European country automatically gives citizenship to those born there. In my opinion, the illegal immigrant problem is straining our system and making our government unsustainable. I think it is smart for the congress to start thinking of solutions to these problems. I have nothing against immigrants per se but I do have a problem with people who don’t believe in following our laws and then believing that they have rights in our country. I’d like to see the playing field leveled for those who respect our country, stand in line, and come here legally and aim to contribute to our country, rather than favoring those who come and take what they can for themselves and then expect their children to become automatic citizens.

  • Laura Speegle

    How far back do YOU have to go to prove you are entitled to real citizenship? I only see white guys begging beside the intersections in my city. How are they going to prove they belong here?

  • KMW

    The word “radical” is not always used in a subjective (opinion) sense. It is a word that can be used to describe a view that isn’t mainstream, or that is far from the mainstream. In this type of case there is no positive or negative connotation to the word. Using the word “radical” to describe the republicans in congress who supported the birthright citizenship views in the mid 1860s should only be seen as a neutral descriptive to anyone well versed in this country’s history,

    Also, to anyone well versed in what the Republican party has traditionally stood for over the years, using the descriptive phrase “the kind of pedigree that Republicans usually like” would not be seen as opinionated and negative either.

  • Ann Glover

    I don’t believe that illegal immigrants have strained our system. Wars, corporate welfare, corporate greed, and huge tax breaks for the very wealthy are a few of the reasons. It is an old gimmick to get folks to focus on others, usually somehow “different” from ourselves, instead of the problems that truly plague our country. Remember that Nazi Germany focused on the Jewish people, among others.

  • Dave Kresch

    Ever since Need-to-Know replaced Bill Moyer, which was one of my favorite TV shows, I have watched many of the Need-to-Know programs and been quite pleased with the topics that have been discussed and the opinions that have expressed.

    However, I must say that I was very disappointed that the discussion about the current discourse concerning 14th Amendment, that was aired on Aug 13, was so limited. As you pointed out in the piece, the original intent of the Amendment to ensure that children born to former slaves would be citizens of the US. However, you completely omitted any discussion about many important issues that I believe are worthy of debate. The most obvious issue in my mind is whether or not a law that was passed to ameliorate the wrongs done to slaves over so many years should have any bearing on children born to those who come to this county illegally. Doing so simply amounts to rewarding people for bad behavior and actually encourages them to come to the country illegally. Do we really want to encourage people to come to the US illegally when we are already dealing with such a huge ongoing immigration problem?

    The response from Lauren on your WEB page states that No European country automatically gives citizenship to those born in their country. Assuming this is correct, it is an important piece of information that in my mind should have been included in the piece.

    I sincerely, hope that you will revisit this issue in the coming weeks and broaden the scope to include many the issues that many of your listeners would be interested in hearing about in making up their own mind about this issue.

    Dave Kresch
    Tacoma, WA

  • social democrat

    Laura Speegle asked: “How far back do YOU have to go to prove you are entitled to real citizenship?”

    That’s what concerns me, too. I have my birth certificate and each of my parents’ birth certificates, but they’re not the hospital birth certificates with the cute little footprints favored by the birthers. They are merely the state-certified copies on official paper with the official state seal. I wonder if this will be enough to ensure my right to citizenship in ten years when I’m ready for Social Security?

  • social democrat

    What Ann Glover said.

  • Liutgard

    Social Democrat said: “I have my birth certificate and each of my parents’ birth certificates, but they’re not the hospital birth certificates with the cute little footprints favored by the birthers. They are merely the state-certified copies on official paper with the official state seal. I wonder if this will be enough to ensure my right to citizenship in ten years when I’m ready for Social Security?”

    Funny thing that- the ‘certificate’ that the birthers demand is not the legal one, and the State Department doesn’t recognize it. Take that set of footprints down to get a passport and they’ll send you home for the _real_ one, the state certified copy. The kind like the certificates on file in Honolulu…

    I was talking about this just the other night with my roommate. Neither of us carry proof of citizenship on our persons. We were both born here. But if either of us were stopped for a traffic infraction, we can’t prove that we’re here legally, without going home and rummaging through the ‘important papers’ files.

    And my dad was born in Canada. He’s a naturalized citizen now, but I have no idea if he initially came to the States legally. Is my citizenship suspect?

  • Unbelievable

    Wow! All of this anger against illegal immigration. Interesting. This country was founded by illegal immigrants. I don’t recall the British or the Spanish being born here initially. The only “legal” people who were here were the Indians (Native Americans). Everyone else is illegal.

    Also interesting is the fact that the American economy thrived as a result of illegal immigration within the past 10 years. No one seemed to be complaining when the illegals were working the vineyards, farms, hotels, construction, restaurants, clothing manufacturing, landscaping, maid services, and I’m sure many other industries, while the rest of the “legals” were making money, spending it, and paying the illegals under the table (without hurting business as usual).

    Bunch of hypocrites. Now that you’ve gotten all that you can from the “illegals” and the jobs and money are gone, it’s time to send them back where they came from, huh? Maybe we need to send everyone of the so called “legals” back too.

  • Unemployed

    @Unbelievable and all that do not see the problem. You are more than welcome to donate food and rent money. Not to mention $ for school clothes and supplies to all of the unemployed construction workers and their families. My husband along with his employees unemployed for nearly two years. Next time you drive by a house being built (what few there are anyway) take a good look at who is building it. Keep in mind a Mexican-American crew can not compete with the low wages of the illegals. So chances are they will be illegals. They can work for less because the employer pays no insurance in case an employee gets hurt. If an illegal gets hurt the employer is off the hook and our hospitals foot the bill, in turn you pay. This is only one reason they get the jobs over American workers. Sure they want to take care of their families too. But shouldn’t Americans needing jobs to take care of their families come first? Since when do we throw our family, friends fellow Americans under the bus for people that are here illegally? Come on people.
    About this story. PBS I am sadly disappointed with the bias.

  • Wright3040

    You need to research and find the date when the first immigration bill was passed. Up until then no one was illegal, but there came a time when immigration became an issue and thus the law. Yes, the economy may have thrived in the last 10 years, but was that with legal citizens? If not then it was not the right thing to do. I will agree with you on one thing: illegals are being used by a lot of different groups and no one more than the politicians to try and get their vote.

  • Works cited week 2 | Trinity