Stephen Miller makes dramatic move aimed at rolling back Civil War gains: analysis

Stephen Miller is taking aim at the 14th Amendment by pushing the Texas state legislature to exclude undocumented immigrant children from public education, according to a new analysis.

President Donald Trump's key immigration adviser is looking to use the state's Republican legislative majority as a workaround to the U.S. Supreme Court ruling in Plyler v. Doe that found states must provide the same free public education to undocumented children as the children of legal immigrants, and New York Times columnist Jamelle Bouie said Miller wants to test the current court's commitment to the precedent.

"The effect of this change, if it were to become law, would be to mark about a million children as members of a subordinate class — a lower caste excluded from mainstream society," Bouie wrote. "Miller’s push to weaken the equal protection clause raises an important question: Why is he, and the MAGA right more generally, so intent on whittling down the 14th Amendment to essentially nothing?"

Justice William Brennan wrote in the 1982 decision that denying those children a basic education prevented them from living within the structure of American civic institutions and kept them from contributing to the nation's progress, and Bouie then explored the political context of the Reconstruction-era 14th Amendment granting birthright citizenship, which flowed directly from the previous amendment outlawing slavery.

"Today, as a matter of legal interpretation, we read the 13th quite narrowly; it simply ends slavery," Bouie wrote. "But the authors and ratifiers of the 13th Amendment saw it more expansively. To them, it was the foundation for the society they hoped to build."

"To that end, the 13th Amendment was meant to outlaw hereditary caste as much as it was meant to end chattel slavery," he added.

Immediately after ratifying the 13th Amendment, congressional Republicans of the era passed the Civil Rights Act of 1866, which established birthright citizenship, guaranteed equal rights, nullified "Black Codes" passed in former Confederate states to reimpose the conditions of slavery and authorized the federal government to prosecute civil rights violations.

"President Andrew Johnson, a Tennessee unionist whose contempt for slaveholders was outweighed only by his hostility to Black Americans, vetoed the bill as both undesirable and beyond the scope of federal power," Bouie wrote. "The Republican-led Congress overrode Johnson’s veto. It then began work on a new amendment, meant to embed in the Constitution the provisions and protections of the 1866 law, as well as write its vision of a free and equal society into the Constitution itself."

The 14th Amendment that Miller seems to despise flows directly from the vision of Gettysburg and Appomattox, Bouie wrote, and he said straightforward reading of its first section makes clear that American citizenship in almost every case would be established by birth and grant all “privileges and immunities” to anyone born on U.S. soil.

"The Supreme Court would eventually trim and limit this vision, eventually going, in Plessy v. Ferguson in 1896, as far as to permit the kind of subordination that the 14th Amendment was explicitly written to forbid," Bouie wrote. "Indeed, this was part of the transformation of this amendment into a merely legal document — of removing its political content and treating it as a bare set of narrow requirements. The court would do the same to both the 13th and 15th Amendments, robbing them of their power to transform the American republic."

All this chiseling away from the amendment and its intended purpose was done to restore to white southerners the power they felt they'd lost after the Civil War and support the imperial expansion of the era, and Bouie wrote that Miller and his MAGA acolytes were engaged in the same project.

"It is no wonder, then, that they want to gut the 14th Amendment, which was revitalized by the struggles of Black Americans and other groups throughout the 20th century," Bouie wrote. "Theirs is a project of subordination at home and abroad; of the re-inscription of caste and the recreation of tiered citizenship based on race and nationality. And now, as then, the 14th Amendment stands in the way."

"It is not enough, as important as it is, to attack the legal basis of Miller’s efforts or debunk MAGA’s historical arguments," he added. "One must also bring a positive political vision to bear against their fantasy of reimposing rigid lines of caste, class and hierarchy.