How SCOTUS Could End Birthright Citizenship

In 1832 US Army Surgeon John Emerson bought the slave Dred Scott from Peter Blow to be his manservant, then traveled into a free state and then free territories for years. He bought a wife for Dred then Emerson died in Iowa Territory in 1843 and Emerson’s wife Irene inherited Scott and his wife Harriet. After trying to purchase their freedom from Irene Emerson and failing, Irene remarried and her brother John Sanford inherited Dred and Harriet. When they were in Missouri in 1846 Dred and Harriet sued for their freedoms on the grounds that they had resided in free states for years and won their case, then it was appealed and they lost both of their appeals at the state and at the US Supreme Court, where for the first time a style of jurisprudence called Originalism was popular on the Court.

Essentially, they only cared about what the original writers would have meant when they wrote the Constitution and what was in the Constitution, and in 1857 decided in Dred Scott vs Sandford (the SCOTUS clerk misspelled Sanford’s name) that since there were slave states when the Constitution was written and they could only find 2 references to the African race in the Constitution and both references were about them being slaves and property they had to conclude that the original definition of a citizen could not have included Africans, either free or enslaved, or they would have mentioned it. The circuit court should have never taken the case in the first place because Missouri already had an established precedent about taking slaves out of Missouri to free areas and then returning to Missouri, but they made a mistake and that mistake made the Supreme Court find that Dred Scott was not a citizen, and neither was any other person of African descent, so no black person free or enslaved, descended from slaves or not, living in a free state in the North or not, none of them were citizens of any state or of the federal government.

Even if a state said the black people were not slaves, they were still not citizens and no other state other than their home state had to grant them any rights of protection at all. That meant that in the free states black Americans suddenly lost the right to even cross state lines, since they were only technically free in the one state that they lived in, and in all other states, even other free states and territories, they had no legal rights at all. After Dred Scott lost his case in 1857 the Blow family that had sold him 25 years earlier bought him back along with his wife and 2 daughters and set them free.

In 1861 the Civil War began, in 1863 Lincoln delivered the Emancipation Proclamation, and then in 1865 the 13th Amendment was introduced to free the slaves, the Civil War ended, Lincoln was assassinated, the 13th Amendment was passed and the slaves were freed. In 1868 the 14th Amendment was added to the Constitution specifically to absorb the freed slaves and make them citizens, it defined citizenship as having being been born in the country, which automatically made formerly enslaved people citizens of both the state they resided in and of the federal government, the 14th amendment also introduced due process and equal protection into the Constitution, but not the right to vote for former slaves. It took the 15th Amendment in 1870 to give former enslaved black men the right to vote.

The language of the 14th Amendment was not specific enough to say that it only applied to former slaves and Africans, so in 1898 in the United States vs Wong Kim Ark the Supreme Court allowed themselves to wonder what the 14th Amendment could mean in an evolving way, and decided that anyone born in the United States after the slaves were freed was also a citizen, launching birthright citizenship, and that decision has stood every since. But for the first time in 150 years the Supreme Court is full of Originalists again and they have already overturned Roe v Wade and Affirmative Action, so they may also overturn the 1898 US vs Wong Kim Ark decision, even though it has stood as a legal precedent for 127 years.

This would only apply going forward, but this Originalist Supreme Court could end all US Birthright Citizenship if any case is ever appealed to the court. And President Trump issued an Executive Order in the first few days of his second term that ended birthright citizenship for Illegal Aliens, and it was already challenged by various liberal groups, and a judge has blocked it from being implemented, all within the first week of Trump’s second term, so that is the lawsuit that could end up at the Supreme Court, where they may end birthright citizenship for the children of non-citizens and side with Trump, overturning Wong Kim Ark by deciding that the 14th Amendment only ever applied to people that were already born in the country in 1868.