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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.

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