MINI EPISODE: The 14th Amendment is safe...for now (with Susan J. Pearson)

Susan Pearson, welcome back to Relationscapes.

Thanks for having me, Blair.

When the Supreme Court's ruling on birthright citizenship came down, were you surprised by the ruling?

I wasn't surprised that the court rejected President Trump's executive order.

That had been the sense based on the questions, the tenor of the questioning on the day of the hearing.

So I wasn't surprised by the results.

I think what surprised me was that it wasn't a unanimous decision.

Why should it have been a unanimous decision?

Given the pretty clear language of the text and the pretty clear historical scholarship that shows what the debate around the 14th Amendment in Congress looked like, we have a pretty good sense of what the intent of the authors and framers of that constitutional amendment is.

had in mind when they added that language, the particular language about birthright citizenship, to the 14th Amendment.

So in my view, it's a kind of willful misreading of the history to suggest either that the framers of the 14th Amendment only intended this to remedy the Dred Scott decision, which was Clarence Thomas's argument in The Descent, right, that this was only really meant to solve a problem that related to formerly enslaved people and to solve a problem created by the Civil War and the end of slavery.

It's true that that was top of mind to the framers of the 14th Amendment.

But it's also true that if you look at the congressional debates, they considered issues of immigration.

They considered issues of people who were temporarily on U.S. soil.

And they in no way had a theory of domicile operating in those debates.

They didn't discuss that at all.

The theory of

domicile being that the parents had to have some sort of longstanding residents.

or the British common law, which is where the idea of birthright citizenship comes from.

And so you have this very longstanding tradition of birthright citizenship coming over with the British common law.

And then you have the textual evidence from the congressional debates And so together, those things really show that I think this kind of alternative legal theory that's out there doesn't really have any constitutional, legal, or historical support.

And so for those reasons, obviously, I think the dissenter's reasoning is fallacious.

But I think also in... landmark cases like this, right? It often looks better if you can have a unanimous decision.

I know that, for example, in Brown v.

Board of Education, Chief Justice Warren worked really hard to get that to be a consensus opinion because he wanted to put the matter to rest.