Birthright Citizenship and Reconstruction’s Unfinished Revolution

Martha S. Jones

Reconstruction brought about a legal revolution that was unfinished at best.[1] Ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution marked a sea change: slavery was abolished; equal protection to all citizens, regardless of race, color, or previous condition of servitude, was guaranteed; voting became the subject of constitutional oversight. These provisions marked an upending of the antebellum legal regime, even as scholars have disagreed about how thoroughgoing was this transformation.[2] Few would dispute that Reconstruction fundamentally reordered the nation’s constitutional scheme by establishing new and far-reaching federal supremacy and laying the foundation for the culture of rights that was to follow. Since their ratification, the Reconstruction Amendments have proven to be both highly durable and hotly contested.

This essay examines birthright citizenship, among the most far-reaching and disputed of Reconstruction’s legal legacies. The Fourteenth Amendment broke a silence present in the Constitution of 1787, providing: “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.”[3] With this, birthright citizenship assumed a central role in arbitrating national belonging. The principle of jus soli—the right of the soil—had a long history in English common law.[4] Still, it penetrated widespread consciousness in the United States only after its constitutionalization in 1868.[5] Twenty-first-century Americans take for granted how birth liberally bestows citizenship on them and their children, even as much of the world limits the effect of jus soli principles.[6]

Birthright has always required careful interpretation and faced outright challenges. Today, poised to come before the U.S. Supreme Court is Tuaua v. United States.[7] Born in American Samoa, Lene Tuaua challenged his designation as a “non-citizen national,” arguing that he is a U.S. citizen by virtue of birthright.[8] Historians of citizenship explain that despite their birth on U.S. soil, American Samoans have been denied the right to vote pursuant to racism rather than the Constitution.[9] Also on today’s front burner is the status of the children born to undocumented aliens. Birth ties them to U.S. soil; still some scholars of citizenship argue that such children may be deemed beyond the privilege of birthright.[10] Legal historians have taken this debate from law reviews into the public square. [11] Their competing analyses turn on readings of the Fourteenth Amendment, making the scope and application of birthright citizenship a live question today.[12]

It has been so for nearly two hundred years. Indeed, it is difficult to point to any moment during the past two centuries when the principle of birthright citizenship was not the subject of debate. This essay suggests that the Reconstruction-era ratification of the Fourteenth Amendment, in this sense, is best understood as an important though not definitive moment in the history of birthright. The import and the limits of events in 1867–68 followed on the heels of antebellum debates over the status of free African Americans. And they were followed by continued uncertainty about birthright when, at the century’s close, questions plagued the children of Chinese immigrants because their parents were ineligible for naturalization. The Fourteenth Amendment largely resolved the citizenship dilemma former slaves faced. It did less well for the U.S.-born children of immigrants who, in the 1890s and today, face questions about where they are situated along the nation’s borders of belonging.[13]

The first debates over birthright citizenship predate the Reconstruction altogether. Antebellum lawmakers asked whether former slaves and their descendants were protected from arbitrary removal beyond the nation’s geopolitical borders, and the answer turned on views about birthright citizenship. It was a constitutional puzzle generated by colonization schemes and black laws that threatened to banish, exile, or otherwise remove free black Americans from the United States. The questions were made only more complex because, close to the ground, federal officials conducted business in contradictory fashion. The post office barred black mail carriers at the start of the nineteenth century, while customs officials issued seamen’s protection certificates that proved their citizenship in foreign ports.[14] Were they citizens by birthright, free people of color might enjoy the privileges and immunities guaranteed by Article IV, Section 2 of the Constitution. Black activists and their allies built a claim grounded in jus soli. Birthright citizenship, it was argued, bestowed a right to place, a right to remain within the nation’s political and geographic boundaries unmolested.[15]

Congress twice took up the puzzle of black Americans and birthright citizenship in the 1820s. On both occasions it fumbled. In 1821, a clause in the proposed Missouri state constitution mandated laws “to prevent free negroes and mulattoes from coming to and settling in the State, under any pretext whatsoever.”[16] Congress asked whether a prohibition against the in-migration of free persons of color would violate the constitution by drawing an impermissible distinction between citizens of different states? The resulting debate stretched over many days with forceful advocates on both sides. Some said free black people were citizens: “If a person was not a slave or a foreigner—but born in the United States, and a free man, going into Missouri, he has the same rights as if born in Missouri.” Others saw no conflict, the implication being that free black Americans were not, constitutionally speaking, citizens. In the end, Missouri was admitted pursuant to a constitution that retained the troubling language. Still, Congress admonished the state not to enact any law that would impair the rights of citizens from other states, including those of color.[17]

Five years later, in 1826, Congress returned to citizenship reaching a similarly ambiguous resolution. A free black New Yorker, Gilbert Horton, was detained in Washington, D.C., as a fugitive slave.[18] Threatened with sale as a slave to cover his jail fees, Horton was freed with the help of Governor DeWitt Clinton, who demanded his release as a citizen of New York. New York Congress member Aaron Ward placed Horton’s circumstance before the House of Representatives, asking the Committee on the District of Columbia to inquire into and consider the repeal of “any law which authorizes the imprisonment of any free man of color, being a citizen of any of the United States, and his sale as an unclaimed slave, for gaol fees and other charges.” What erupted was a “radical difference of opinion.” Some lawmakers “claim[ed] as a matter of right, that black persons, held to be citizens of the United States, in the State of New York, should enjoy in every other state the same privilege.” Others maintained,  “We have the right to exclude free People of Color, to eject them and to limit their privileges, when we admit them to reside among us.” The matter moved forward only by way of a murky compromise: Ward dropped his reference to free men of color as citizens. With that, the committee proceeded with its inquiry.[19]

Antebellum attorneys general also confronted race and birthright. Shades of Congress’s indecision surfaced. In 1821, Attorney General William Wirt was asked if free black men could command American merchant vessels when federal law barred noncitizens from commanding such ships. His answer was a qualified no: if free black Virginians were not full citizens of their state, they could not be citizens of the United States.[20] Wirt’s opinion left an opening: Were a black person deemed a “full” citizen of his individual state, he might also be a citizen of the United States. Three years later, in 1824, Wirt rendered an opinion on South Carolina’s Negro Seamen’s Act, which provided that black mariners entering the state be detained while their ship was at anchor.[21] He deemed the statute unconstitutional, holding that only Congress had authority to regulate such commerce.[22] It was not an affirmation of free black citizenship, but it put Wirt on the right side of the question. Wirt’s successor, Roger Taney, revisited the question of black ship’s captains.[23] When queried about the constitutionality of South Carolina’s Negro Seamen’s Acts, Taney took a view opposite to that of Wirt, asserting that free African Americans “were not looked upon as citizens by the contracting parties who formed the constitution…and have not been intended to be embraced in any of the provisions of that constitution but those which point to them in terms not to be mistaken.”[24] He continued: “That article of the constitution which gives to citizens of each State the “privileges & immunities of citizens” was not intended to include “the coloured race.” Taney’s prose countered Wirt’s view, while leaving unresolved whether black Americans could be citizens of the individual states. The possibility that state and federal citizenship might not align or be otherwise linked was the same one Congress had sidestepped when considering the Horton case in 1826.

By the 1850s, courts were no less divided than Congress had been. In Scott v. Sandford, now Chief Justice Roger Taney returned to free black citizenship, concluding that the plaintiff Dred Scott and indeed no black American, enslaved or free, could be a citizen of the United States in constitutional terms. Justices John McLean and Benjamin Curtis dissented. McLean’s opinion recognized birthright citizenship, echoing the views expressed in Congress thirty years earlier: “The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. . . . Birth on the soil of a country both creates the duties and confers the rights of citizenship.” McLean acted on his ideas. In July 1857, while sitting on the federal Circuit Court for Illinois, he limited the application of Scott v. Sandford in Mitchell v. Lamar. Joseph Mitchell, a free African American from Illinois, brought a suit against Charles Lamar of Wisconsin for damages in connection with an assault. Did a federal court have jurisdiction? McLean thought it did and reasoned that Mitchell, a free black man not descended from slaves, was a citizen: “A freeman, who has a permanent domicile in a State, being subject to its laws in acquiring and holding property, in the payment of taxes, and in the distribution of his estate among creditors, or to his heirs on his decease.” McLean reasoned: “Such a man is a citizen, so as to enable him to sue, as I think, in the Federal Courts.”[25] It was a mistake to understand Scott v. Sandford as having settled the question of free black birthright citizenship. Justices sitting in lower federal courts would narrowly construe its interpretation.[26] Antebellum lawmakers, driven by the challenges presented by visible and growing communities of free African Americans, confronted questions about the nature of citizenship. They were not of one mind, as the debate in Congress and the differences between Supreme Court Justices evidence. What was clear however is that there was in antebellum legal culture a well thought-out and robust view about a muted by very present endorsement of birthright citizenship in the Constitution.

More familiar is the story of birthright citizenship thinking in the era of the Civil War and Reconstruction. Indeed, the era is often regarded as the starting place for birthright citizenship in law. With the antebellum debates in clear view, links to ideas that had had their origins in the 1820s are apparent. What was new in the 1860s, however, was the possibility for radical legal transformation that accompanied war and its aftermath. In 1864, when he developed an opinion on free black birthright citizenship Attorney General Edward Bates had in mind the debates among antebellum lawmakers. Bates was asked whether black men might command American vessels when federal law limited such duties to citizens of the United States.[27] With this, Bates returned to a question answered four decades earlier by then-Attorney General William Wirt. He reached, however, a different conclusion.[28] Bates rejected the view that citizens might be recognized by the privileges—such as military service, holding office, or voting—they exercised. He acknowledged the Constitution’s general silence but viewed its recognition of “natural-born” citizens as significant, seeing no basis for a legal category between those of citizen and alien. The general rule, he explained, was that “every person born in the country, is, at the moment of birth, prima facie, a citizen.” Might race or color work to rebut the presumption of citizenship? No, Bates concluded after revisiting the reasoning of attorneys general before him, including Wirt and Taney: “The free man of color . . . if born in the United States, is a citizen of the United States.” After careful study, Bates arrived at a view that was familiar to the era’s students and scholars of citizenship because the attorney general echoed Congress members of a generation previously.

Bates presaged new thinking in Congress about birthright. Between 1866 and 1868, through two quick, hard-won, and powerful agreements, Washington lawmakers took up the status of black Americans, with birthright as their centerpiece. They aimed at three formidable foes: Scott v. Sandford; the prewar black laws now remade into postwar black codes; and an absence of any defined rights that attended citizenship. The resulting Civil Rights Act of 1866 challenged the prewar legal regime. Up front was birthright: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude.”[29] Swept away, without comment, was the longstanding threat of banishment or exile that black laws and colonization schemes had posed. In its place was an enumerated set of civil rights that gave citizenship new content, including “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”

With its ratification in 1868, the Fourteenth Amendment became the touchstone on birthright citizenship to which many of those aspiring to national belonging in the United States would turn.[30] The application of the amendment’s birthright provision was not without controversy. Even the fine points of birthright were subject to dispute, as was apparent when the first black member of the Senate, Hiram Revels, arrived to take his seat in 1870.[31] Had Revels been a citizen for the requisite nine years?[32] Perhaps not, some argued, if his birthright was set in place only with the Fourteenth Amendment’s ratification in 1868. Revels was seated, and the debate over his eligibility as senator signals an important shift. None of his opponents doubted that Revels was a citizen. His birthright was undisputed; the only question was when that right had vested, and the answer was that the Fourteenth Amendment made black American citizens beginning with the dates of their birth on U.S. soil. Erased was any suggestion that black men and women were still subject to arbitrary exclusion, banishment or removal, as antebellum lawmakers had strongly suggested. Still, the Fourteenth Amendment would not serve as an uncompromised weapon against inequality during the last decades of the nineteenth century. As Gary Gerstle explains in his essay for this issue, forces lined up, including those consistent with white supremacy, to limit the amendment’s meaning for black Americans.

What Congress did next helps us see how the constitutionalization of birthright citizenship still left unresolved critical facets of national belonging, even for black men and women. A nagging vestige of the pre–Civil War legal regime remained. The Naturalization Act of 1790, still in effect, limited eligibility for citizenship to free white persons: future black immigrants and longtime residents of the United States were not made citizens by way of the Fourteenth Amendment’s birthright provision. Charles Sumner proposed striking the word “white” from the act. But this prospect met with opposition from those who feared that such a change would open the door to more than the naturalization of black immigrants: it might also make Chinese immigrants eligible for citizenship. The revision’s final language extended naturalization laws to “aliens of African nativity and to persons of African descent.”[33] No new provisions regarding Chinese immigrants were included in the 1870 law, leaving a small opening through which they might win naturalization as white persons. By 1882, however, the first of the Chinese exclusion acts closed this door tight, making explicit that Chinese immigrants would remain aliens.[34]

What of the U.S.-born children of Chinese immigrants, those “natural-born” descendants of permanent aliens? The Fourteenth Amendment’s birthright clause might appear to make plain their claim to birthright. But an interpretation emerged in the years after 1882, one that turned not on the amendment’s jus soli principle and instead relied on the qualifying phrase “subject to the jurisdiction thereof.” Those born in the United States were citizens, except when exempted from domestic law and regulation, a provision that initially had in mind the children of foreign diplomats.[35] Anti-Chinese views led to a new interpretation: the indelible loyalty to the emperor of China held by immigrants was said to be passed on to their children.[36] The children of Chinese immigrants were said to be permanent aliens, like their parents, because their fidelity to the Chinese empire rendered them incapable of submitting to the jurisdiction of the United States.

When the case of United States v. Wong Kim Ark reached the U.S. Supreme Court in 1897, it reflected the degree to which thinking about the Fourteenth Amendment and birthright remained contested long after the end of Reconstruction.[37] Not only were highly influential legal minds prepared to opine that children born on U.S. soil were not citizens, by way of an inherited political disability; low-level administrators, including custom agents, also held such views and were prepared to act on them. Wong, a San Francisco native, had returned to the United States from a visit to China unmolested in 1890. In 1895, he was detained upon arrival at the port of San Francisco. Custom collector John Wise and U.S. Attorney Henry Foote agreed that Wong should be rightly excluded as an alien. His birth on U.S. soil was overridden, in their view, by his indelible foreignness. Only rulings by the U.S. District Court and then the U.S. Supreme Court affirmed Wong’s status as a birthright citizen.[38] Was a child “born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China,” a citizen of the United States? The courts answered, “Yes.”[39] That those like Wong could not be excluded from the nation’s geopolitical boundaries resonated deeply with the claims set forth on behalf of free African Americans more than eight decades earlier. Birthright citizenship was embodied in a claim to place, to remain and to return.

Birthright citizenship has a history that extends across nearly the whole of the nineteenth century. It entered legal debates during the antebellum era through the constitutional puzzle that free African Americans posed. In the era of the Civil War and Reconstruction, birthright took on new significance as questions about the incorporation of former slaves into the nation led to the constitutionalization of birthright. The principle and the constitutional history that gave it application were not, however, settled. The children of Chinese immigrants confronted the denial of their birthright claims in customhouse confrontations settled only when the Supreme Court carefully examined, for the first time in its history, the record of birthright’s past and its application to all those who claimed their place within the nation’s borders of belonging.

 

Martha S. Jones is a Presidential Bicentennial Professor, professor of history and Afroamerican and African Studies, and a member of the Affiliated LSA Faculty at the Law School, where she directs the Michigan Law Program in Race, Law & History. She is co-editor, with M. Bay, F.J. Griffin, and B.D. Savage, of Toward an Intellectual History of Black Women (UNC Press, 2015). Her book, Birthright Citizens: A History of Race and Rights in Antebellum America, is forthcoming this year from Cambridge University Press.

Notes

Thank you to Eric Foner and the anonymous reader for the Journal of the Civil War Era for their insightful comments on this essay. Thank you especially to Kate Masur for sharing her work-in-progress on the case of Gilbert Horton. The core of this essay draws upon the arguments in my book Birthright Citizens: A History of Race and Rights in Antebellum America, forthcoming from Cambridge University Press.

[1] Historian Laura Edwards characterizes the antebellum legal order as “among the Civil War’s casualties.” She emphasizes that during Reconstruction “legal change not only flowed from above,” as underscored in this essay, it “also welled up from below, as ordinary Americans confronted questions about law in the course of the war and its aftermath.” Edwards’s 2015 A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015) insightfully guides readers through this complex terrain, of which questions about birthright citizenship were but one facet. For a political history of the Reconstruction-era amendments, see Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988).
[2] For a discussion of how historians have characterized Reconstruction’s legal revolution, see Robert J. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” American Historical Review 92 (February 1987): 45–68. See also Richard Primus, “The Riddle of Hiram Revels,” Harvard Law Review 119 (April 2006): 1680–1734.
[3] U.S. Const., art. XIV, § 1.
[4] Polly J. Price, “Natural Law and Birthright Citizenship in Calvin’s Case (1608),” Yale Journal of Law and the Humanities 9, no. 1 (Winter 1997): 73–145.
[5] For discussion of important deviations from the principle of birthright citizenship in the United States, see Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (Philadelphia: University of Pennsylvania Press, 2013); Ben Herzog, Revoking Citizenship: Expatriation in America from the Colonial Era to the War on Terror (New York: New York University Press, 2015).
[6] The Law Library of Congress reviewed limitations on birthright citizenship in Western Europe. “Citizenship Based on Birth in Country” in 2012 ([Washington, DC]: Law Library of Congress, 2012).
[7] Sam Erman et al., “Brief of Citizenship Scholars as Amici Curiae in Tuaua v. United States.” In possession of author.
[8] In 2015, the U.S. Court of Appeals for the District of Columbia ruled that the Fourteenth Amendment’s birthright clause did not apply to the noncitizen nationals of American Samoa, Tuaua v. United States, 788 F.3d 300 (D.C. Circuit, 2015). At the time of this writing, Tuaua and the other plaintiffs were preparing a certiorari petition to the U.S. Supreme Court.
[9] Sam Erman and Nathan Perl-Rosenthal, “American Samoans Should Be Citizens,” CNN.com, April 10, 2015, http://www.cnn.com/2015/04/10/opinions/erman-rosenthal-american-samoans/.
[10] Peter H. Schuck and Rogers M. Smith, Citizenship without Consent: Illegal Aliens in the American Polity (New Haven: Yale University Press. 1985). Peter H. Schuck and Rogers M. Smith, “Citizenship without Consent,” Social Contract 7 (Fall 1996): 19–25. Garrett Epps, “The Citizenship Clause: A “Legislative History,’” American University Law Review 60, no. 2 (2010): 331–88.
[11] Peter H. Shuck, “Birthright of a Nation,” New York Times, August, 13, 2010; Garrett Epps, “The Problem with Challenging Birthright Citizenship,” Atlantic, September 1, 2015, http://www.theatlantic.com/politics/archive/2015/09/the-problem-with-challenging-birthright-citizenship/403147/.
[12] Scholars have also examined the Constitution’s “natural-born citizen” provision, which defined eligibility for the presidency, most recently in connection with Ted Cruz’s bid for the office. Nathan Perl-Rosenthal and Sam Erman, “Ted Cruz: Is He or Isn’t He Eligible to Be President?” History News Network, January 31, 2016, http://historynewsnetwork.org/article/161859.
[13] The phrase “borders of belonging” is borrowed from historian Barbara Welke, who explains the dynamics of nineteenth-century citizenship as having been shaped by the meanings or consequences of race, gender, and ability. For Welke, the history of citizenship turns on how belonging for some was “achieved through the subordination or exclusion of others.” Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010): 4–5.
[14] For the origins of U.S. seamen’s protection certificates and the citizenship they evidenced, see Nathan Perl-Rosenthal, Citizen Sailors: Becoming American in the Age of Revolution (Cambridge, Mass.: Harvard University Press, 2015). On the 1802 federal ban on black postal workers and the subsequent legislation, see Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 174–86.
[15] African American claims to birthright citizenship are woven throughout the deliberations of antebellum African American political conventions (often termed the “Colored Conventions”). Proceedings of the Black State Conventions, 1840–1865, vol. 1 of 2, ed. Philip S. Foner and George E. Walker (Philadelphia: Temple University Press, 1980); Proceedings of the Black State Conventions, 1840–1865, vol. 2, ed. Philip S. Foner and George E. Walker (Philadelphia: Temple University Press, 1980). Antislavery and emigration activist Martin Robinson Delany wrote at length about a claim to being American by birthright in The Condition, Elevation, Emigration, and Destiny of the Colored People of the United States (Philadelphia: The Author, 1852). In his 1838 treatise, William Yates provided the most comprehensive view of this argument: The Rights of Colored Men to Suffrage, Citizenship, and Trial by Jury (Philadelphia: Merrihew & Gunn, 1838).
[16] Missouri Const. of 1820, art. III, §S 26, in Thorpe, Federal and State Constitutions, 4:2154.
[17] 37 Annals of Cong., 31–110 (1820–21).
[18] A full-length treatment of the Horton case is Kate Masur, “The Case of Gilbert Horton,” unpublished paper in author’s possession.
[19] “Laws of the District of Columbia,” Congressional Register, December 26, 1826, 555, 565, 566; “Legislative Acts/Legal Proceedings,” Commercial Advertiser (New York) December 30, 1826, 4. “Free Blacks in the District of Columbia,” Congressional Register, January 11, 1827, 654. “Free Persons of Color. House of Representatives, January 11, 1827.” Niles Weekly Register, January 27, 1827, 343–45.
[20] Official Opinions of the Attorneys General of the United States, vol. 1 (Washington, D.C.: 1852), 507, available online at the Hathi Trust Web site: http://babel.hathitrust.org/cgi/pt?id=uc1.b5156720;view=1up;seq=507
[21] For the origins of U.S. seamen’s protection certificates and the citizenship they evidenced, see Perl-Rosenthal, Citizen Sailors.
[22] William Wirt, “Validity of the South Carolina Police Bill,” in Opinions of the Attorneys General of the United States, ed. Benjamin F. Hall (Washington, D.C.: Robert Farnham, 1852), 659–61. Subsequent to Wirt’s ruling, southern states began to impose “Negro Seamen Acts.” that required black sailors remain confined aboard ship or in the local jail when in port. While Wirt disapproved of such laws as unconstitutional, courts took the opposite view and approved. Philip M. Hamer, “Great Britain, the United States, and the Negro Seamen Acts, 1822–1848,” Journal of Southern History 1 (February 1935): 3–28; and Michael Schoeppner, “Legitimating Quarantine: Moral Contagions, the Commerce Clause, and the Limits of Gibbons v. Ogden,” Journal of Southern Legal History 17, nos. 1 & 2 (2009): 81–120.
[23] Wirt left office in March 1829. He was immediately succeeded by John M. Berrian. In July 1831, Roger Taney assumed the office, serving until November 1833.
[24] Smith v. Turner; Norris v. Boston, 48 U.S. 283 (1849); Scott v. Sandford, 60 U.S. 393 (1857.) ; H. Jefferson Powell, “Attorney General Taney and the South Carolina Police Bill,”  Green Bag (Autumn 2001) http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6126&context=faculty_scholarship.
[25] “Important Decision in the U.S. Circuit Court: James C. Mitchell vs. Charles Lamar,” Chicago Daily Tribune, July 15, 1857.
[26] Justice Taney knew this when, in 1858, he penned a supplemental opinion in Scott v. Sandford. Published only after his death in 1864, this manuscript text evidenced Taney’s frustration with how ignored and misunderstood his conclusion on black citizenship had been in the months after March 1857. He hoped for an opportunity to clarify his view, one that never came. Roger Brooke Taney, “Supplement to the Dred Scott Opinion,” in Samuel Tyler, Memoir of Roger Brooke Taney, LL.D., Chief Justice of the Supreme Court of the United State (Baltimore: J. Murphy, 1876), 578–79, 598–608.
[27] For a fine-grained reading of the related primary materials including Bates’s opinion, see James P. McClure et al., eds., “Circumventing the Dred Scott Decision: Edward Bates, Salmon P. Chase, and the Citizenship of African Americans,” Civil War History 43, no 4 (December 1997): 279–309. McClure et al. explain that initially Bates was reluctant to provide an opinion, noting that to pronounce on citizenship was to go to the heart of the nation’s constitutional system. Others before him had erred in their analyses, especially conflating the relationship between citizenship and political rights. He viewed Justice Taney’s decision in Scott v. Sandford to have been an error, one that incorrectly assumed that the absence of political rights proved the absence of citizenship. Bates assumed jurisdiction over whether free men of color were citizens such that they could properly serve as masters of vessels in the coasting trade.
[28] 10 Op. Att’y Gen. 382, 382–83 (1862). James P. McClure et al., “Circumventing the Dred Scott Decision.”
[29] Civil Rights Act of 1866, 14 Stat. 27–30 (April 9, 1866) On  this act, see Robert J. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” American Historical Review 92 (February 1987): 45–68.
[30] Kristin A. Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Yale Law Journal 123 (May 2014): 2134–35.
[31] Richard Primus, “The Riddle of Hiram Revels,” Harvard Law Review 119 (April 2006): 1680–34.
[32] U.S. Const., art. I, § 3, clause 3.
[33] 16 Stat. 254–56.
[34] 22 Stat. 58; Kunal Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600–2000 (New York: Cambridge University Press, 2015): 123–24. On race, national origin, and citizenship, see Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, N.J.: Princeton University Press, 2004). Natalia Molina, How Race Is Made: Immigration, Citizenship, and the Power of Racial Scripts (Berkeley: University of California Press, 2013). Joshua Paddison, American Heathens: Religion, Race, and Reconstruction in California (Berkeley: University of California Press, 2012). Bernadette Meyler, “The Gestation of Birthright Citizenship, 1868–1898 States’ Rights, the Law of Nations, and Mutual Consent,” Georgetown Immigration Law Journal 15, no. 3 (Spring 2001): 519-562.
[35] Epps, “Citizenship Clause.”
[36] Parker, Making Foreigners, 120–21.
[37] U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).
[38] Erika Lee, At America’s Gates: Chinese Immigration during the Exclusion Era, 1882–1943 (Chapel Hill: University of North Carolina Press, 2003): 103–5. Lucy E. Salyer, “Wong Kim Ark: The Contest Over Birthright Citizenship,” Immigration Stories, ed., David A. Martin and Peter H. Schuck (New York: Foundation Press, 2005): 51–85.
[39] U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).

 

One thought on “Birthright Citizenship and Reconstruction’s Unfinished Revolution

  1. Indebted to Martha Jones for giving birth-right citizenship the attention it deserves in Reconstruction studies, I want to link it to the the issue of state-building.

    A country intent on reconstructing itself naturally gave attention to how its recently threatened membership should be determined, Questions of loyalty were on people’s minds, and the abolition of slavery highlighted victorious ideals of liberal consent. Within this context, the use of birth-right citizenship to determine membership posed a number of complications.

    As Rogers Smith and Peter Schuck pointed, traditionally jus soli did not promote a liberal view of consensual citizenship. It determined membership by the accident of where one is born, not by choice. Insofar as “the citizen” by definition implies the “non-citizen” or “the alien,” why should someone receive the rights of citizenship simply because of the accident of birth?

    The answer that children should not be rendered stateless does not explain why birth-right citizenship should be determined by jus soli—by soil—rather than by jus sangunis—by blood. Indeed, when the Fourteenth Amendment was ratified, internationally the progressive way of determining birth-right citizenship was by jus sangunis. Jus soli was associated with monarchies: the belief that anyone born in the king’s realm is a subject of the king and owes the king eternal allegiance. Writing in age of revolutions, Swiss Emmerich Vattel contrasted jus soli’s eternal subjection with jus sanguinis’s implication that children consented through their parents. “The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage.” As American George Collins wrote, “The subordinate status of subject …however appropriate to a monarchy, is fundamentally repugnant to republican institutions.”

    The story of jus soli in the United States is not simply about how the Court adopted a common law precedent; it is about how Reconstruction politics adapted it to new circumstances. Here are a few snippets of that complicated story.

    I. “Subject to the jurisdiction thereof.” “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” How do we interpret: “subject to the jurisdiction thereof?”

    Jones claims that only after the Chinese Exclusion Act of 1882 did an interpretation challenging jus soli emerge. In fact, in THE SLAUGHTER-HOUSE CASES (1873), while distinguishing state from national citizenship, Justice Miller asserted that the phrase “was intended to exclude from its operation children of ministers, consuls, and citizens and subjects of foreign states born within the United States.” Miller, in other words, seems to have wanted to deny birthright citizenship to children born to parents who were not themselves US citizens. Miller does not elaborate, but he most likely based his interpretation on the 1866 Civil Rights Act, which included the phrase “not subject to any foreign power.” Perhaps for Miller the phrase about birth in the US was simply intended to give citizenship to African Americans. After all, for Taney African Americans were subjects of the US; they were simply not entitled to US citizenship. Not binding because it was a dictim, Miller’s interpretation shows how easy it would have been to adopt a jus sanguinis interpretation.

    The 1866 Civil Rights Act also excludes “Indians not taxed.” The first Supreme Court case producing a binding interpretation of the citizenship clause was not WONG KIM ARK, but a case involving a Native American.

    II. ELK V. WILKINS. At the time, most agreed that members of Native American tribes born and living on tribal land did not have US citizenship, unless it had been conferred to the entire tribe through a treaty. But ELK V. WILKINS involved John Elk, who renounced his tribal loyalty only to be denied the right to vote because he was not deemed a citizen. The majority on the Court rejected Elk’s claim, arguing that “subject to the jurisdiction thereof” meant complete subjection to US jurisdiction, a condition not met by birth on tribal land because of the limited sovereignty granted to tribes. Thus, even though it was clear that states were completely subject to US jurisdiction, tribes were not.

    Of interest is the dissent by Justice Harlan, most famous for his dissent in PLESSY. Harlan gave a third way to interpret “subject to the jurisdiction thereof.” He argued that the moment of birth and subjection to US jurisdiction need not be simultaneous. Elk, he argued, was clearly born with in the US. Also, when he renounced his tribal loyalty, he became completely subject to US jurisdiction. Thus, he met the conditions of the citizenship clause and not to grant him citizenship would be to create a class of stateless people in the US. The majority claimed that what such people needed to do was go through a process of naturalization.

    As noble as Harlan’s dissents in this case and in PLESSY are, he also dissented in WONG KIM ARK, which granted those of Chinese descent—indeed anyone born in US territory–birth-right citizenship. Or so it would seem. Harlan also dissented in DOWNES V. BIDWELL (1901), the first of the notorious Insular Cases that limited the rights of those born and living in the insular territories acquired after the Spanish-American War along with those born and living in Hawai’i annexed in 1898. My comment on Gerstle alludes to the these cases. For now, more on the story of adaptation, not adoption.

    III. WONG KIM ARK and Expatriation. Schuck and Smith criticize the majority’s decision because they reject jus soli for not being consensual. What they fail to note, however, is an equally important development of the law of citizenship in the era of Reconstruction. In 1868, the very year that the Fourteenth Amendment was ratified, Congress passed an Expatriation Act, declaring the right to expatriate a “natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Expatriation may not seem to involve birth-right citizenship, but the 1868 act altered the doctrine of jus soli in the US by freeing it from its medieval associations of eternal allegiance.

    Affirming the right to expatriation at this time was complicated because it might seem to justify southerners who renounced their loyalty to the Union to fight for the Confederacy. Yet the right was crucial for a country of immigrants. Support for it developed when some Irish Americans who had fought for the Union, were arrested in Ireland for supporting rebels against British colonial rule and were tried by the British as treasonous British subjects, not US citizens. (See Lucy Salyer’s ERIN’S HOPE.) The law led to the negotiation of treaties with foreign nations recognizing a mutual right to expatriation called Bancroft Treaties, named after the most famous US historian at the time, George Bancroft, who designed them as Ambassador in Berlin to the new North German Confederation.

    IV. WONG KIM ARK and the Power of the National Government. As Salyer documents, the US government’s case against Wong Kim Ark was argued by a former Confederate cavalry officer, US Solicitor General Holmes Conrad from Virginia. Conrad could not resist noting that the Fourteenth Amendment existed only because southern states were forced to ratify it. He also insisted that the amendment had not expanded national power over citizenship. Such power, he told the Court, recalled efforts during Radical Reconstruction, “that unhappy period of rabid rage and malevolent zeal when corrupt ignorance and debauched patriotism held high carnival in the halls of Congress.” In the Slaughter-House Cases, he argued, the Supreme Court had “forever shattered the idol of national citizenship which the ‘reconstruction Congress’ had placed upon so lofty a pedestal.” To bolster his case he cited a Kentucky case prior to Dred Scott that denied free African Americans citizenship even though they were born in the United States. He also relied on US v Cruikshank, which had undercut the Ku Klu Klan Act by denying the national government important enforcement powers that the Court reserved for the states. Cruikshank defined citizens as “the people who compose the community.” Because of race and culture, Conrad argued, Chinese could not be part of such a community in the U.S.

    Opposing this former Confederate were two prominent northeastern attorneys. Joseph Hubley Ashton had been Assistant Attorney General under Presidents Lincoln and Johnson. He was an expert in international law. Maxwell Perkins Evarts came from a distinguished New England family. His father, William Maxwell Evarts, had been Johnson’s Attorney General and Hayes’s Secretary of State. His grandfather, Jeremiah Evarts, was the most vocal opponent of Jackson’s Indian removal policy. Evarts represented Wong Kim Ark because he was an attorney for the Southern Pacific Railroad, which needed Chinese labor. Evarts and Ashton had unsuccessfully represented Chinese in Fong Yue Ting v. U.S. (1893) that gave Congress power to deport aliens at will. Having been defeated by trying to restrict national power over issues of immigration, in Wong Kim Ark Evarts and Ashton opposed Conrad by stressing national authority over citizenship. Evarts ended his brief by quoting Charles Sumner’s account of the Fourteenth Amendment: “Here is the great charter of every human being, drawing vital breath upon this soil, whatever may be his condition and whoever may be his parents. He may be poor, weak, humble or black–he may be Caucasian, Jewish, Indian, or Ethiopian race–he may be of French, German, English or Irish extraction; but before the Constitution all those distinctions disappear . . . He is one of the children of the State, which, like an impartial parent, regards all of its offspring with equal care.” Subjection to the sovereign state carries with paternal protection of the sovereign state.

    Ironically, then, the national government made an argument based on the assumption that the nation does not have complete sovereign authority (and care) over all children born in its territory (some owe allegiance to another country), while an attorney for a corporation argued for the nation’s complete sovereign authority (and care) over all children born in its territory, except those born on tribal Indian lands. (For more on this paradox, see my comment on Gerstle.)

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