The Ghost of Dred Scott Still Haunts Us

5 minute read

Katyal is the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center and a partner at Hogan Lovells. He previously served as Acting Solicitor General of the United States.

In the annals of bad Supreme Court decisions, one stands head and shoulders above the rest: Dred Scott v. Sanford, the ruling that African Americans could never become citizens of the United States. One of our country’s proudest moments was when the Fourteenth Amendment replaced Dred Scott with an express constitutional guarantee that “all persons” born in the U.S.—regardless of race—are full and equal citizens of this great nation.

Unfortunately, a recent federal Court of Appeals decision breathed new life into Dred Scott’s odious notion of race-based citizenship. In Fitisemanu v. United States, the Tenth Circuit held that people born in American Samoa and other U.S. territories have no constitutional right to birthright citizenship. Instead, it said, the Constitution allows the government to classify all those born in American Samoa as non-citizen nationals. This second-class status as nationals-yet-not-citizens means American Samoans lack basic rights the rest of us enjoy, including the ability to vote and to serve on juries.

This week, the Supreme Court will decide whether to review and potentially reverse the Tenth Circuit’s decision in Fitisemanu. The Justices should take this opportunity to enforce the enduring promise of the Fourteenth Amendment and finally banish Dred Scott to the constitutional grave where it belongs.

This matter is personal to me. I represent Lynn Jackson and Belinda Torres-Mary, who filed an amicus brief urging the Supreme Court to take up Fitisemanu. Ms. Jackson is the great-great-granddaughter of Dred and Harriet Scott and the founder of the Dred Scott Heritage Foundation. Ms. Torres-Mary is the great-granddaughter of Isabel Gonzalez, a Puerto Rican woman whom the Supreme Court wrongly failed to recognize as a U.S. citizen nearly a century ago. Together, they are standing alongside their forebears to protect the idea—enshrined in the crystal clear text of the Fourteenth Amendment—that no government or official can ever impose racial limits on birthright citizenship and establish a second-class of unequal Americans.

More from TIME

We should all take pride in the Fourteenth Amendment. It is one of the crown jewels of our Constitution. The text connects the promise of the Declaration of Independence that “all men are created equal” to a constitutional commitment that all those born on U.S. soil, regardless of their race, have the right to share in that equality as full and equal citizens.

The Supreme Court is no stranger to that pride. As Justice Jackson explained at oral argument just last week, the Fourteenth Amendment built on the protections in the Civil Rights Act of 1866 “to give a … constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.” As Justice Thomas similarly recognized earlier this year, the Fourteenth Amendment’s guarantee of birthright citizenship “forever closed the door on Dred Scott.”

Sadly, when it has come to the U.S. territories, our nation and our courts have not always lived up to the Fourteenth Amendment’s noble ideals. In 1904, the Supreme Court had the opportunity to fully enforce the Fourteenth Amendment’s promise of citizenship and equality in U.S. territories. My client’s ancestor, Isabel Gonzalez, was born in Puerto Rico and traveled to New York in hope of opportunity, only to be detained at Ellis Island as an “alien” immigrant. When Isabel’s case reached the Justices, she argued that she was a citizen of the United States, not an alien.

Yet instead of declaring Isabel a citizen, the Supreme Court punted. The Court ruled only that Isabel Gonzalez was not an “alien” within the narrow meaning of the relevant immigration statute. The decision invited the federal government to deem Americans born in territories “non-citizen nationals.” And that result is precisely the kind of second-class status to which Dred Scott had consigned African Americans but which the Fourteenth Amendment forbids for all Americans.

It is no surprise, then, that the ghost of Dred Scott haunts the Tenth Circuit’s decision in Fitisemanu. Without properly confronting the text, history, or purpose of the Fourteenth Amendment, the Court of Appeals ruled that Congress has the unilateral power to deny birthright citizenship in U.S. territories like American Samoa. That holding echoes some of the most infamous words in Dred Scott: the notion that a group of Americans could have “had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

The Supreme Court is now presented with a clear choice. The Court can deny review and once again allow the political branches to run roughshod over the promise of the Fourteenth Amendment. Or the Court can enforce the constitutional promise denied to Dred Scott, Isabel Gonzalez, and so many in American Samoa today: All those born in the U.S.—regardless of race, creed, or color—are full and complete citizens.

More Must-Reads from TIME

Contact us at

TIME Ideas hosts the world's leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Opinions expressed do not necessarily reflect the views of TIME editors.