Evelyn Rangel-Medina and Hilary Symes (both Temple University Beasley School of Law) have posted Blood, Soil, and Race: The Perils of Shredding the Fourteenth Amendment on SSRN. Here is the abstract:
At the center of a generationally defining battle lies the Fourteenth Amendment, which played a key role in ending slavery, ostensibly repudiating systems of inherited legal status. Slavery was partly sustained by the doctrine of partus sequitur ventrem, which used maternal lineage as the primary mechanism for denying citizenship to Black people for over three centuries.
Simultaneously, Native Americans were excluded from citizenship through a separate framework of federal wardship, exemplified by Elk v. Wilkins. In response, the Fourteenth Amendment, together with United States v. Wong Kim Ark, the Indian Citizenship Act of 1924, and the Immigration and Nationality Act of 1952, helped establish a constitutional tradition in which citizenship is determined principally by birth rather than by ancestry or parentage. After Reconstruction, citizenism emerged as a system of hierarchical rights that uses immigration and citizenship status to reproduce racial inequality. The concept of citizenism illuminates mechanisms that disproportionately exclude families of color from citizenship. A contemporary mechanism is Executive Order 14160, currently before the Supreme Court in Donald J. Trump v. Barbara. If deemed constitutional, the Order would reshape constitutional membership for millions of U.S-born children by conditioning citizenship on parental status rather than birth.
Drawing on national origin data for undocumented and temporary-status populations, this Essay demonstrates that efforts to re-whiten U.S. citizenship, like this Order, would primarily affect mixed-status families of color. The demographic evidence shows that the Order targets Indigenous, Black, Latinx/e, and Asian and Pacific Islander communities, with Mexican-origin families comprising the largest affected group. The foreseeable consequences include heightened vulnerability to economic exploitation, worsening health disparities, and an increased risk of statelessness. The Barbara v. Trump litigation, therefore, tests not only the scope of executive power but also the durability of citizenship as a foundational guarantee of democratic belonging.
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