Commentary Law and Policy

The 14th Amendment Says You’re A Citizen When You’re Born, So No Wonder Conservatives Hate It

Amanda Marcotte

Many Republicans have been attacking, undermining, or radically reinterpreting the 14th Amendment, which guarantees equality under the law. There's a lot of reasons for this, but the common theme is undermining women's right to control when and how they give birth.

Rick Santorum loves to denounce Dred Scott v. Sandford, an infamous case from 1857 in which the Supreme Court declared that Black Americans cannot be considered U.S. citizens. It seems safe to say that Santorum is not particularly interested in the racial politics of the 19th century. The lengthy struggle of Black Americans to gain civil rights is of no interest to him. He only wields the name “Dred Scott” as a cudgel against decisions like Roe v. Wade or Obergefell v. Hodges—cases that, ironically, expanded human rights—in some sort of garbled effort to say that because Dred Scott was unmistakably wrong, so can be other Supreme Court decisions, hint hint.

But for all that Santorum likes mentioning Dred Scott every chance he gets, it turns out that he is no fan of the constitutional amendment that overturned it. Santorum has signed a pledge supporting the end of birthright citizenship. The 14th Amendment specifically states that all “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It was written specifically to overturn Dred Scott by rendering all Black Americans—and everyone born in the United States—U.S. citizens.

Santorum is hardly the only Republican reinterpreting, denouncing, or flat-out lying about the 14th Amendment these days. Seemingly overnight, all sorts of Republicans have decided they don’t like the 14th Amendment as it’s currently interpreted. And at the center of the various swirling controversies over it are, of course, women and what they choose to do with their bodies, with a mighty helping of racism and xenophobia in there to boot. Some Republicans are angry that women are choosing to give birth. Some are angry that they’re choosing not to give birth. Most are angry about both. But all that anger is being channeled through some staggeringly stupid and false claims about what the 14th Amendment actually says.

The most prominent attacks on the 14th Amendment right now are coming from Donald Trump and all the other Republican candidates who want to appeal to his supporters. Trump has amassed a massive following through old-fashioned nativist demagoguery, painting Latino immigrants as a menace to the American way of life who have to be kicked out before they destroy us all. He has specifically zeroed in on a popular and completely baseless right-wing idea that huge numbers of pregnant women sneak into the United States over the Mexican border in order to give birth to babies who will become automatic U.S. citizens. Conservatives frequently call these children “anchor babies,” to imply that these women are using their children as “anchors” to prevent deportation.

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It should be self-evident that this is a racist myth. It’s just a way to demonize women of color—to suggest that mothers of color don’t actually love their children, but simply treat them like paydays instead of people. This, again, is utter nonsense. But should you desire more extensive debunking, Janell Ross of the Washington Post points out that having a minor child who is a citizen isn’t a path to citizenship or really even a legal shield against deportation.

But of course the myth of the “anchor baby” is politically potent on the right. It combines two favorite conservative beliefs: That immigrants are somehow out to get us and that women are not to be trusted to handle their own reproduction.

The 14th Amendment couldn’t be clearer that birth is what makes you a citizen, but anti-immigrant politicians just refuse to accept it. Donald Trump, Rand Paul, Rick Santorum, Lindsey Graham, and Chris Christie all favor either changing the amendment or pretending it doesn’t say what it clearly says. Even though there’s absolutely no evidence to suggest that birthright citizenship does any harm—and it does a lot of good by simplifying our laws around citizenship and protecting people’s rights—these politicians give into the urge to shame women for choosing to have birth on terms that make sense for them instead of those laid out by bigoted politicians.

But that’s hardly the only way that the 14th Amendment is being reimagined by those who want to control women’s reproductive choices. Mike Huckabee has taken to running around claiming that the 14th Amendment should be interpreted as a ban on abortion, even though the Supreme Court has repeatedly upheld abortion as a legal right. 

Let’s set aside for now the fact that Huckabee is claiming that the president should basically become a dictator who ignores rule of law. His interpretation of this amendment is a complete inverse of reality. Many actual legal scholars, Justice Ruth Bader Ginsburg especially, say the opposite: That the Supreme Court should have invoked the 14th Amendment to protect abortion rights in 1973, on the grounds that women are citizens and, as citizens, should have equal rights to bodily autonomy as men.

Huckabee, clearly thinking he’s got a real “gotcha” here, is arguing the opposite: that embryos are actually citizens. By necessity, though he doesn’t explain this outright, his argument would go on to hold that women therefore cannot be citizens. As Amanda Taub of Vox points out, not being forced to give up part of your body to another person is a basic human right, even if they need it to live. So it’s not enough to declare embryos are people in order to compel women to give up our bodies to nourish them. We must also and by necessity declare women to be non-persons in order to get there. Huckabee doesn’t say that part, but his argument doesn’t work without it.

Of course, even to get there, you have to ignore a word that, as it happens, is the same word that anti-immigrant conservatives ignore with their novel interpretations of the 14th Amendment: born. It’s right there in the first sentence of the 14th Amendment: “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.” (Emphasis added.) Born, as in when you came out of your mother’s body. Not when your mother’s DNA merged with your father’s nine-and-a-half months before. Not when your parents become citizens of the United States. Not at any random point where conservatives, after assessing your racial or national background, decide you count. Conservatives frequently try to chip away at the protection of equality—what the 14th Amendment supposedly guarantees, with a variety of results—in numerous ways, but this is a broad-based onslaught.

All these attacks on the 14th Amendment are ultimately about undermining the importance of birth, an act for which you need a uterus. No surprise that the supporters of male dominance want to shift focus away from “giving birth” to something else, something cisgender men can do—ejaculate, write something on a piece of paper—as the real moment when someone becomes a citizen. But our laws should be built around what works best for our country and the people in it, all the people in it, and not just the hurt feelings of a bunch of male egotists.

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