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

Introduction – 0:00

BLAIR HODGES: This is Blair Hodges, an independent journalist in Salt Lake City, welcoming you to another mini episode of Relationscapes, where we explore the intersections of race, gender, sexuality, ability, and more. It's a mini episode because it's shorter and a bit more tightly focused than our usual conversations. I'm going to set the stage right now, and then we'll get right into the interview.

On June 30, the Supreme Court issued a landmark decision rejecting President Donald Trump's efforts to end birthright citizenship, ruling 6–3 that the 14th Amendment guarantees automatic U.S. citizenship to children born on American soil, regardless of their parents' immigration or temporary legal status. It was a reason to celebrate, but barely.

Legal experts point out the 6–3 ruling was actually more like 5–4, because Justice Brett Kavanaugh basically agreed that destroying the 14th Amendment was fine. He just thought the way Trump went about it needed improvement.

Donald Trump launched his political career by spreading the lie that Barack Obama was not born in the United States. And he launched his second term as president trying to overturn the plain and long-held intent of the 14th Amendment. In both of those cases, birth certificates played an important role. That's why I invited Susan J. Pearson back for a mini episode to help us process what this all means.

Susan J. Pearson is a historian and author of the book The Birth Certificate: An American History. We're going to dig into the ruling and situate it within the history of the American birth certificate. And with the midterm elections coming up this fall, we're also going to talk a little bit about how the president is trying to use birth certificates as a way to suppress people's right to vote.

Thanks for joining me, and let's get to it.

Not Unanimous – 01:39

BLAIR HODGES: Susan Pearson, welcome back to Relationscapes.

SUSAN J. PEARSON: Thanks for having me, Blair.

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

SUSAN J. PEARSON: I wasn't surprised that the Court rejected President Trump's executive order. That had been the sense, based on the questions and the tenor of the questioning on the day of the hearing. So I wasn't surprised by the result. I think what surprised me was that it wasn't a unanimous decision.

BLAIR HODGES: Why should it have been unanimous?

SUSAN J. PEARSON: 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 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 dissent. 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.

BLAIR HODGES: The theory of domicile being that the parents had to have some sort of long-standing residence in the United States..

SUSAN J. PEARSON: Long-standing, right. And again, there's abundant evidence that that was not the operating understanding of what it meant to be under the jurisdiction of the United States, either for the framers of the 14th Amendment in Congress or the British common law, which is where the idea of birthright citizenship comes from.

And so you have this very long-standing tradition of birthright citizenship coming over with the British common law. And then you have the textual evidence from the congressional debates. Together, those things really show that this kind of alternative legal theory that's out there doesn't really have any constitutional, legal, or historical support.

So for those reasons, obviously, I think the dissenters' reasoning is fallacious. But I think also, in landmark cases like this, 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 once and for all.

BLAIR HODGES: Mm-hmm.

SUSAN J. PEARSON: And so I think my guess is John Roberts would have liked to have had a 9–0 if he could have pulled it off, but he just couldn't.

Blood and Soil – 05:15

BLAIR HODGES: Okay, help me understand if my view of the law is correct. My understanding is that there's kind of a blood-and-soil component here. To get American citizenship, you either inherit it at birth from American citizens, or those who are born on American soil receive American citizenship regardless of the status of their parents. Is that the consensus view of what the 14th Amendment intended?

SUSAN J. PEARSON: Yes, that's the consensus view. And the hereditary aspect of it really only applies to you if you're outside the United States. So if you were the child of U.S. citizens but you were born in Germany, for example...

BLAIR HODGES: Your parents were deployed or something.

SUSAN J. PEARSON: Yeah, exactly. Which happens all the time, right? Especially in the case of the U.S. military or diplomats, which is the other big example. Or maybe your parents are studying at a university or doing graduate school in a foreign country. You still obtain U.S. citizenship through, as you said, hereditary means—blood. But otherwise, it's jus soli, which is the law of the soil.

BLAIR HODGES: Right. Okay. So you're the author of a book called The Birth Certificate: An American History, which we have an episode out about. I encourage people to go check that out. It's a fascinating overview of why the birth certificate came about, how it's worked, the cultural work that it's done, its origins in concerns about public health, and then how it's also been used to invent and regulate race in this country, along with other purposes.

As a historian who's done that kind of work, how did you see that tying into these discussions about the 14th Amendment and citizenship?

SUSAN J. PEARSON: Yeah, that's a good question. I think I saw the issue of birth certificates as really fundamental—not in the Supreme Court decision, but in the executive order that was at issue. Because what the executive order said was that the federal government will not accept birth documents, in certain cases, as proof of U.S. citizenship. Right? So it said, "We won't accept a birth certificate that shows that a child was born in the United States if their parents didn't have legal status," right, or were only here temporarily, even though they were here legally.

So if you were here on a student visa, for example, and you had a child, the executive order said agencies of the federal government will not accept that birth certificate as proof of U.S. citizenship. So either you're here temporarily—that is to say, under the legal theory they were advancing, you're not domiciled in the United States and therefore you're not under the jurisdiction of the United States—or you're here without legal status.

What I found interesting about the executive order is that, in a nation that has no federally created citizenship documents, the only way that the federal government could try to undermine birthright citizenship is to say under what conditions they would accept birth certificates from the states. Birth certificates have kind of come to act as citizenship documents, but that's not their essential intention. That's not why they were created. They're just the closest thing we have.

And what's interesting is that the federal government doesn't control them—the states do. So all the federal government can do is say, "We won't accept certain kinds of documents," or, "We won't accept documents under certain conditions." So, for example, that just means we're not going to accept your birth certificate in order to give you a Social Security number. We're not going to accept your birth certificate in order to give you a passport—things like that. It does have control over passports, Social Security, and access to those federal documents.

BLAIR HODGES: Has there been any recent movement to change birth registration and birth certification to become a federal thing rather than something controlled by the states?

SUSAN J. PEARSON: No. There's no constitutional authority for the federal government to do birth registration. So it would require an act of Congress to make that a reality. And as far as I know, I haven't heard anything about any member of Congress introducing legislation to try to move from this state-controlled birth registration system to a federal birth registration system.

The last time that conversation happened, that I know of, was during World War II, when there were a lot of issues with trying to establish the citizenship of people who were going to be employed in war industries. At that point, the federal government came out with a rule that said you had to be a U.S. citizen to work in the war industries, and they quickly discovered that there were approximately six million people of working age who had no proof of their citizenship despite being born on U.S. soil.

So at that point they said, "Oh, this is kind of a crazy system we have, where we do have national citizenship and yet we have no way to prove it. So maybe we ought to have a national identification system." But that discussion ended without the creation of any kind of national citizenship registration.

BLAIR HODGES: I think, for me, that's maybe the biggest surprise or the biggest puzzle. For how hot of a political issue this is—and maybe that's why—we don't have a federalized way of tracking, documenting, or establishing citizenship that could easily transfer over.

And here's just my guess. One of the reasons that the current administration isn't going for that is because it would require a lot of work. It would require a lot of political cooperation. And given how divided the parties are right now, I don't think that's possible. From a personal standpoint, I'm not sure it's desirable. It seems to give a lot more power to someone like the Trump administration—or a future administration that could be like that administration—than I would want them to have. So maybe, for me, that's not a bad thing.

SUSAN J. PEARSON: Exactly. And in other respects, the Republican Party is the party of small government, right? This sort of national registration system, I think, has a kind of Big Brother aspect to it for some people, even though it's completely common everywhere else in the world. We just have this slightly idiosyncratic federated system where we don't have it.

I guess the other thing I would say is that the Real ID is edging pretty close to being a national citizenship document.

BLAIR HODGES: The Real ID driver's license. Say what that is.

SUSAN J. PEARSON: Yeah. So the Real ID driver's license is something that came about after 9/11 to try to enhance the security of driver's licenses, and it's now required for air travel.

Again, what you see is the federal government. It doesn't control the states. It doesn't control the DMVs everywhere. But it controls things like air travel through the Department of Homeland Security. So it can place pressure on the states to change the criteria by which they issue driver's licenses.

That's how they've exercised leverage over the states to make the documents people provide in order to get a driver's license more stringent. They've raised the bar for how many documents you have to provide and what kinds of documents you have to provide. That's supposed to enhance the security of the driver's license so that, when you're interfacing with federal agencies, if you have a Real ID, you have one status. If you don't have a Real ID, you have another status.

The SAVE Act – 13:25

BLAIR HODGES: All right. Well, for now, the law is settled in terms of the 14th Amendment. We still believe in it, apparently. So that's a positive, although some justices have signaled a willingness to keep evaluating it and perhaps trying to change that.

We're also seeing conversations surrounding citizenship, birth certificates, and proof of identity with the SAVE Act. So I wanted to take a couple of minutes to talk with you about the SAVE Act. If you could describe what that is, what's happening with it, and how it pertains to birth certificates and identity.

SUSAN J. PEARSON: Sure. So the SAVE Act is short for the Safeguard American Voter Eligibility Act. It's a piece of legislation that has passed the House of Representatives and is now languishing in the Senate, with pretty much no hope of even being brought to the floor for a vote.

It's a law that would require proof of U.S. citizenship in order to register to vote in federal elections. The avowed purpose of it is to ensure that only U.S. citizens are voting in federal elections. And that sounds pretty uncontroversial. The problem with it is that it could have the effect of disenfranchising an unknown number—but we can predict many thousands—of birthright citizens, people born on U.S. soil who unambiguously have the right to U.S. citizenship.

So that's the grounds on which a number of people concerned with access to the basic rights of democracy have been opposed to the SAVE Act.

BLAIR HODGES: How does it currently work in terms of verifying identity in order to be eligible to vote? Because the claim that a bunch of undocumented people are voting hasn't been substantiated.

SUSAN J. PEARSON: Yeah. It's a fraction of 1%. It's below 1%. I think it's something like one one-hundredth of 1% or something like that. So there are a handful of known instances of people who don't have the right to vote in U.S. elections voting in them.

Right now, the burden of proof to register to vote is pretty low, but it depends on your state. Arizona, for example, has passed a state-level version of the SAVE Act, and other states are doing similar things. Instead of waiting for the federal government to act, they take matters into their own hands.

So in Arizona, you have to provide proof of U.S. citizenship in order to register to vote there. But, like birth registration, voter registration is something that's controlled by the states. The SAVE Act is an effort to make a uniform set of standards across the states. Right now, it varies a bit depending on where you live.

BLAIR HODGES: And that set of standards sets such a high bar that it would disenfranchise a lot of voters. This is what Republicans don't want to emphasize. They just want to present this as some sort of common-sense "keeping our elections safe" effort, when in reality it kind of reminds me of some of the old attempts to have poll taxes or literacy tests—to put obstacles in the way of people voting.

Because we also don't have a free, universal government ID system where it's necessarily easy for a bunch of people to prove citizenship. So it really just disenfranchises a bunch of people. This is going to suppress voter turnout quite a bit.

SUSAN J. PEARSON: Yeah, absolutely. Whether that's the intended effect or not, you can be sure that it will be one of the effects. Anytime you increase the requirements for documentary proof of identity, you are going to throw up obstacles in the path of people—particularly low-income folks, people who live in rural areas, and nonwhite Americans. Different kinds of demographic groups.

But some of those are folks who will be part of the Republican base. It reminds me of what you mentioned about disenfranchisement through poll taxes and things like that. All of those rules were racially neutral. They had to be, in order not to violate the 15th Amendment. They were certainly intended to disenfranchise African Americans, but they also ended up disenfranchising poor whites in the South.

There's good scholarship showing that that was one of the knock-on effects of those kinds of rules. Similarly, with the SAVE Act—or the state-level SAVE Acts—the intention may be, "We don't want illegal aliens to vote," but the unintended consequences may be the disenfranchisement of a lot of ordinary Americans who don't have possession of their birth documents, maybe don't have driver's licenses, or other forms of identification—or passports. Very few Americans actually have passports.

BLAIR HODGES: Very few people who've changed their names, especially women who've gotten married...

SUSAN J. PEARSON: People who've changed their name, yep. Women who've gotten married and never bothered to apply for a new birth certificate. It'll look like there's a disparity between the driver's license and the birth certificate. What's going on here? Is this fraudulent? If the documents don't agree, then it may seem like it's not a situation in which you want to verify that person's identity.

Elections Assistance Commission – 19:17

BLAIR HODGES: Well, even though Republicans hold the House, the Senate, and the executive branch through the Trump administration, the SAVE Act does right now seem dead, as you mentioned, because the Senate isn't taking it up anytime soon.

The Trump administration has also tried kind of a workaround through the Election Assistance Commission. So talk about that angle and how it pertains to efforts to suppress voting. That's how I'm going to present it. I know Republicans aren't necessarily going to say that's what they're doing, but that is the outcome of what they're doing. So talk about the proposed rule change for the Election Assistance Commission.

SUSAN J. PEARSON: Yeah. So the Election Assistance Commission is an independent agency within the U.S. federal government. It was created in 2002 by Congress, and it's supposed to serve as a kind of national clearinghouse of information about how to administer elections. It collects best practices and disseminates them to the states.

An outside group—a political action committee—has proposed a rule change to the Election Assistance Commission. That rule change is, in substance, the SAVE Act. What they're trying to do is get around Congress and propose a rule to the Election Assistance Commission which, if it adopted the rule, would then apply in the states. So, as you said, it's an attempt to get around the fact that Congress can't pass the SAVE Act through the Senate.

BLAIR HODGES: So they basically want to just make a rule. How successful could this be, do you think?

SUSAN J. PEARSON: I think what would happen if the Election Assistance Commission decided to adopt this rule—and we haven't heard yet what their decision is—is that you would probably find some states would happily obey the directive and others would not. They might even pass new laws saying, "We're not going along with this," or simply have their secretary of state issue a different set of rules for voter registration in their state.

Then what you would do is set up a constitutional crisis, right? And you'd end up with a Supreme Court case.

BLAIR HODGES: Oh, good!

SUSAN J. PEARSON: Yeah.

BLAIR HODGES: And then we'd probably see it go 5–4, maybe. Hopefully. Or maybe that's when the conservative justices will be like, "Hey, this is where we can get..."

SUSAN J. PEARSON: Right, right.

Scholarship and Personal Political Views – 21:52

BLAIR HODGES: Well, if you wanted listeners to leave with one broader insight about the relationship between citizenship, identity, and this sort of government record-keeping, what do you want more people to understand?

SUSAN J. PEARSON: I think there are two things, if you'll permit me.

One is to understand that birth documents are not uniformly accessible for all Americans. There are people alive today whose births were never registered, and there are people alive today for whom obtaining a birth certificate is a costly and burdensome process. So any requirement that people show proof of citizenship is going to have to reckon with that reality.

I think the second thing that I would emphasize is that we are a nation that has no national citizenship documents. So anytime we want to make rules around proof of citizenship, we also have to keep in mind that we are making requirements in the absence of any federal system for verifying who is a citizen and who is not.

BLAIR HODGES: Yeah. And again, it seems deliberate. It seems like if they wanted the SAVE Act to improve the voting process rather than restrict the voting process, they would have built into it provisions to make ID more universally accessible—to fund IDs, to expand access to those things—instead of just throwing up obstacles.

So that's why, I guess, I'm more cynical. Do you, as a historian, have to wrestle with your personal political views as you're talking in the classroom or as you're putting together your work? Because you kind of have to use more diplomatic language. I guess it's kind of the way of the academy not to impute negative intentions to certain people, unless you can find quotes where they're outing themselves. Do you have to wrestle with that at all as you're dealing with this issue? Because this is a political issue, but it can be really personal too.

SUSAN J. PEARSON: Yeah, I do. Particularly in the classroom, I try not to express my own personal opinions to my students. I try to give them information. Of course, I'm the person in charge, so I'm selecting the readings, I'm selecting the themes. I have a lot of control over what happens in the classroom. But I never offer my opinion about current events or anything like that.

Sometimes I'll say, "You might hear about something like this in the news," or, "Right now the 14th Amendment is in the news. Let's talk about what that amendment says and why it was so important." But I don't say, "Therefore you should think X about what's in the news." I just try to offer context and help them see that the history they're learning is connected to things that are going on in the present moment.

History is with us all the time. It explains how we got to where we are, and it can also help us understand the things we're seeing in the newspaper. Why is this happening? What are the precedents? Like you mentioned, the poll tax and things like that. Where does this fit in a history of efforts to expand—or contract—the electorate in the United States?

So I try to be sensitive to not making students feel like they have to agree with me or adopt a particular position in my classroom. And when it comes to things like the SAVE Act or the birthright citizenship case, I really just rely on facts. In both of these cases, there's a lot of evidence to support the interpretations of what the 14th Amendment's language means and also what the effects of something like the SAVE Act might be. So I take comfort and shelter in concrete information.

BLAIR HODGES: Well, you sound like a raging leftist, just like I've been told all the people in universities are. So everyone should take note. That's a very radical position.

SUSAN J. PEARSON: Thanks! [laughs]

BLAIR HODGES: That's Susan J. Pearson. She's a professor of history at Northwestern University, and she wrote the book The Birth Certificate: An American History. You can check out our interview about that book—it just came out a little while ago.

Susan earned her Ph.D. in history at the University of North Carolina at Chapel Hill, and she's currently working on a collection of essays with other scholars called Paper Documents, Identity, and Citizenship in U.S. History. Very important work right now. We need to have historians doing it.

We're also seeing Supreme Court justices who are completely willing to ignore that scholarship and find hack bloggers to rely on for invented histories that justify their current political positions. So keep fighting the good fight, even though it might not make it to all nine justices.

SUSAN J. PEARSON: Thanks for having me on, Blair. It's been great to talk with you.

Outro – 27:12

BLAIR HODGES: That's it for this mini episode. Thanks to Susan Pearson for joining us again. You can check out her other episode on the American birth certificate. It's called "The Secret and Sometimes Sinister History of American Birth Certificates."

If you're enjoying Relationscapes, I hope you'll take a second to rate and review it in Apple Podcasts or rate it in Spotify. Check out this review from listener Jared in Texas:

"One of my favorite things about Relationscapes is all the different folks that I've gotten to meet while listening. So many different stories and perspectives."

Jared, that's why I love doing the show too. I feel the same way. So thanks for leaving that review. I hope other people will follow your excellent example.

If you want to see some video clips from this episode and some other bonus content, you can follow me on Instagram or TikTok. It's @relationscapes.

Mates of State provides our theme music. I'm your host, Blair Hodges, an independent journalist in Salt Lake City, and I hope to spend more time with you soon here on Relationscapes.

Transcripts - Susan J. Pearson