Dignity is and always has been the question
Birthright citizenship is about nothing but human dignity. It is about the absolute right of people – just by virtue of being born in the US – to be included in the political community as equals with all others.
The United States Supreme Court, in a case titled Trump v. Barbara, agreed that the language of the 14th Amendment means what it says: “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.”
The Court decided the case on the grounds in which they are most at home: looking at text, history, the mindset of the men who were involved in its passage in 1868, and selected Supreme Court precedents before and after. Most of this evidence is more than 100 years old and bears little connection to the foreign-born plaintiffs whose children were born in the United States and are at risk of losing the only citizenship they have ever known.
Justice Jackson wrote separately to make a specific point about the meaning and purpose of this clause of the 14th amendment: that it is not about protecting specific classes or castes of people, or even about overturning a particularly “odious” decision that excluded African Americans from the circle of “we the people.” Rather, the amendment linked to “the fates of all” and planted “deep and solid the corner-stone of eternal justice, and to erect thereon a superstructure of perfect equality of every human being before the law.”
The idea of equality that was planted in the Constitution, Jackson explains, was not just about equal rights but about dignity:
The question is (and always has been): Does the affected individual or group enjoy equal dignity? And the correct answer is (and has always been) to heed the Fourteenth Amendment’s universalist, antisubordination command. Our Nation did not undergo something as profound and world-shifting as “Reconstruction” for naught.
For Jackson – as for the delegates to the Colored Conventions who advocated for the changes to the Constitution, dignity was not just a talisman to invoke. It was their lived experience – both the source of their power to bring their dream of citizenship to life and the very meaning of the dream itself. Jackson describes their vision in terms that align perfectly with modern day conceptions of dignity as the “foundation of a just rule of law” and the basis of human right, and as connected to autonomy, identity, and community and as marked by inherence, equality and universality.
Delegates to the Colored Conventions drew upon their own experiences to successfully argue for a new Constitution—one that protected fundamental human rights, including an individual’s “‘right to own his body and mind’” and “the right of personal security and protection against injuries to our bodies or good name. Thus, even in cases where the protagonist was not a Black American, this Court’s Fourteenth Amendment cases have focused, at bottom, on the same universal liberty and equality interests that motivated the Fourteenth Amendment itself.
They saw dignity as the protection of fundamental human rights, and saw that this included the rights of bodily integrity and agency with authority over one’s body and mind. They saw that it was rooted in the individual person, but related to how each person presents in society (thus the protection of reputation). They saw that dignity was a universalist ideal, not a right that some classes assert against others. They saw (as Justice Kennedy did in Obergefell v. Hodges) that dignity lies at the confluence of liberty and equality. They saw that there is enough dignity to go around for all and that everyone wins when dignity is roundly respected.
Justice Jackson’s vision of the Constitution is worth close attention. It is one that is deeply rooted in the transformative and fundamental power of human dignity.
Chief Justice Roberts’ opinion for the Court does not mention human dignity at all and misses the perfect opportunity to cast the decision in dignity terms. At the end of his opinion, he says: “Citizenship, then and now, was the right to have rights—to freely participate in our political community.” This is an ironic turn of phrase, because it was originally used by the 20th century philosopher Hannah Arendt in her discussion of humanity and dignity, not citizenship. The difference is a missed opportunity to understand that what is ultimately at stake is not just the right to be a citizen of the United States but the right to have one’s human dignity respected. And that, as Justice Jackson says, is and always has been the question.