4. Rewriting Dred Scott: How Four Words Changed America

Plus: Why those same four words are under attack again

What if I told you that the most radical sentence in American constitutional history contains just seventeen words?

And what if I told you that those seventeen words, written 157 years ago, are at the center of one of today’s biggest political battles?

Last week, I explored how Dred Scott made everything worse—how the Supreme Court’s attempt to settle the slavery question through constitutional interpretation instead ignited a civil war. Today, I want to talk about the constitutional response to that catastrophe, and why it’s suddenly controversial again.

The answer came in four simple words that changed everything: “All persons born ... naturalized.”

The Post-Civil War Constitutional Revolution

Picture America in 1865. The war is over. 600,000 Americans are dead. Confederate armies have surrendered, but here’s the terrifying reality: nothing else has really changed.

Former slaves are legally free but practically powerless. Southern states are already devising new ways to subjugate Black Americans: Mississippi prohibits Black people from renting farmland; South Carolina forces Black workers into year-long contracts that function like slavery; Louisiana allows whites to arrest any Black person without employment.

Freedom without citizenship, it turns out, was no freedom at all.

This was the nightmare facing Radical Republicans in Congress: How do you constitutionally prevent a defeated South from recreating slavery in everything but name? How do you ensure that 600,000 deaths actually meant something?

Their answer would fundamentally rewrite America by shifting power from states to federal government, from local majorities to individual rights, from racial hierarchy to constitutional equality.

But it would take three constitutional amendments to do it.

The Three-Amendment Solution

The Thirteenth Amendment (1865) abolished slavery. Easy enough: everyone could agree actual slavery was done. But Southern states immediately struck back with “Black Codes” that were grimly creative in their cruelty.

The Fifteenth Amendment (1870) prohibited denial of voting rights based on race. Southern states responded with poll taxes, literacy tests, and grandfather clauses. When legal obstacles weren’t enough, they turned to terror—the KKK became an armed wing of white supremacy.

But it was the Fourteenth Amendment (1868) that did the revolutionary lifting. Its first section packed multiple radical transformations into a single, dense sentence—17 words that would change everything:

“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.”

Four Words That Overturned a Nation

Let’s focus on those first three words: “All persons born.”

They seem simple enough. If you’re born here, you’re a citizen. Done.

This was breathtakingly radical in 1868.

Remember, Dred Scott had declared that Black people—even those born on American soil—could never be citizens under the Constitution. Chief Justice Taney had written that Black Americans “had no rights which the white man was bound to respect.”

The 14th Amendment’s opening didn’t just disagree with Taney, it demolished him. The framers didn’t write “all white persons born,” or “all persons born to citizens,” but “ALL persons born.”

Imagine being in Congress in 1866, crafting these words. You know that four million formerly enslaved people need immediate constitutional protection. You know Southern states will try every legal trick to deny them citizenship. You know that Dred Scott’s reasoning could be used to exclude anyone deemed undesirable.

So, what do you do? You write it broadly. Inclusively. Without exceptions or qualifications that hostile courts could exploit.

The amendment’s authors knew exactly what they were doing. They were answering Dred Scott’s exclusion with inclusion, its hierarchy with equality, its constitutional racism with constitutional universalism.

For roughly 150 years, this seemed settled. Children born in America, regardless of their parents’ citizenship status, were American citizens. Period. Birthright citizenship became part of our constitutional DNA, distinguishing America from most other nations.

The Modern Challenge to 150 Years of Law

But constitutional DNA, apparently, can be challenged.

Enter a legal theory that claims the 14th Amendment doesn’t establish birthright citizenship for everyone born in America. Before you dismiss this as fringe thinking, consider: The same person who developed this theory also provided Donald Trump with legal arguments to try to overturn the 2020 election.

And now? President Trump has signed an executive order attempting to end birthright citizenship for children of undocumented immigrants.

Sound familiar? It should.

When History Rhymes

This brings me right back to the themes of my earlier posts. Just as Dred Scott tried to constitutionalize one side’s political preferences, modern challenges to birthright citizenship ask us to read restrictions into the 14th Amendment that simply aren’t there.

Trump’s claim that the amendment is “about slavery” (as if that somehow limits its scope) reveals a fundamental misunderstanding of how constitutional interpretation works.

Yes, the 14th Amendment was written to overturn Dred Scott and ensure that formerly enslaved people became citizens. But the framers didn’t write “only former slaves and their descendants are citizens.” They wrote “ALL persons born ... in the United States.”

Here’s the crucial point: when the framers wanted to solve a specific problem (slavery), they chose universal language that solved it completely. They didn’t create a narrow exception just for Black Americans—they established a broad principle that included everyone born on American soil.

The amendment doesn’t say “former slaves born in the United States” or “persons born to legal residents.” It says, “ALL persons.”

Why? Because by 1868, the framers knew they were writing for the future, not just the immediate post-war moment. They understood that America would continue to receive immigrants, and they chose language broad enough to encompass that reality.

The Dangerous Pattern

Here’s what should worry us: The same interpretive moves that led to constitutional catastrophe in 1857 are reappearing in contemporary debates.

Courts claiming to find the “true” meaning of constitutional text while adding words that aren’t there. Politicians and even scholars arguing that clear language doesn’t mean what it says because of historical context or original intent.

When I teach the 14th Amendment, I want students to see these patterns. Constitutional law isn’t just about legal technicalities, it’s about fundamental questions of interpretation, political power, and what we mean when we say the Constitution is the “supreme law of the land.”

The birthright citizenship debate perfectly illustrates this. Four words written in 1868 to answer the horrors of Dred Scott are now under attack by those using eerily similar arguments to those that created Dred Scott in the first place.

The stakes? Whether America remains a nation where the Constitution means what it says, or whether courts can rewrite it based on political preferences.

Some things, it seems, never change. The question is: Will we learn from history, or repeat it?

Doctrinal sum-up:

Dred Scott: Denied access to federal courts and excluded Black Americans from the political community defined by the Constitution.

The 14th Amendment’s Citizenship Clause changed this: “All persons born … in the US .. are citizens…”

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What do you think? Are we seeing constitutional interpretation or constitutional engineering?