The History Behind the Birthright Citizenship Battle

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The 14th Amendment, which declared that African-Americans were citizens, turned 150 earlier this month. But even as it was being commemorated as one of the signal achievements of post-Civil War Reconstruction, its bedrock provisions were colliding with the furious 21st-century debate over immigration.

In June, President Trump tweeted that undocumented immigrants should be sent home “immediately, with no Judges or Court Cases”— a direct contravention, legal scholars pointed out, of repeated Supreme Court rulings saying that the amendment’s guarantee of due process applies to all people in the United States, whatever their status.

This week, Michael Anton, a former national security official in the Trump administration, wrote an Op-Ed article in The Washington Post saying that birthright citizenship — the longstanding principle that anyone born in the United States is a citizen — rests on a “deliberate misreading” of the 14th Amendment.

The article drew furious responses from scholars on social media and elsewhere. Among those weighing in was Martha S. Jones, a historian at Johns Hopkins University, and the author of the new book “Birthright Citizens: A History of Race and Rights in Antebellum America.”

We talked with Dr. Jones about how the idea of birthright citizenship was created, and how it connects with the current debate about who belongs in America. The interview has been edited and condensed.

The idea of “jus soli,” the right of the soil, goes back to English common law. Where does the American idea of birthright citizenship enter our political tradition?

In the United States, it is the African-American community that first begins to articulate the claim to birthright citizenship. They do it because they need it. Other folks do not.

By the 1830s, African-Americans in what we call the Colored Conventions Movement are crafting an argument that will help defend them against colonization schemes that involve trying to get them to leave the country, and also trying to resist state “black laws” that regulate where they can travel or gather in public, whether they can go to school, own guns and so on.

They look at the Constitution, which doesn’t really define who is a citizen, but does have this clause saying that the president must be a natural-born citizen. They ask, if the president is a natural-born citizen, why aren’t we? The Naturalization Act of 1790 says that only white people can be naturalized. But there is no color line in the Constitution.

We tend to think of the 1857 Dred Scott decision — which declared that back people could never be citizens — as definitively slamming the door shut, until the 14th Amendment came along. How much resistance was there to the decision?

Roger Taney [the chief justice, who wrote the decision] was very aware of the history of African-Americans’ efforts to claim citizenship. And after the decision, we see African-Americans continue to resist, to critique Taney’s decision from the podium, in newspapers. At the same time, lower courts are narrowing the scope of the decision, or refusing to defer to his reasoning.

And African-Americans are not retreating to their homes, or living quiet lives in response to Dred Scott. In Taney’s home state, Maryland, there are about 75,000 to 80,000 free blacks. When the state legislature proposes a new set of draconian black laws that would either remove them or re-enslave them, people organize, gather petitions, go to Annapolis, the capital, as part of an effort that ultimately defeats the legislation.

Black voting rights, which were guaranteed in the 15th Amendment, came under sustained attack for more than a century. Were there similar efforts to roll back birthright citizenship itself?

After 1868, African-Americans are citizens, if they are born in the United States. Now they have a tool that protects them from any effort to remove them from the country. With citizenship, there really is a there there, even as the struggle over civil rights continued, arguably into our own moment.

Where this really comes into relief is in 1882, with the Chinese Exclusion Act [which prohibited immigration of laborers from China]. Children of Chinese immigrants are being stopped when they try to re-enter the country. Customs officials assert that even though they were born in the United States, they are not citizens, and have no right to enter. That’s not the case with African-Americans.

In his Op-Ed article, Michael Anton refers to the 1898 Wong Kim Ark case, in which the Supreme Court ruled that a child born in the United States to Chinese immigrants had a right to re-enter the country. He argues that the case is irrelevant to children of illegal immigrants today. What do you think of that argument?

The argument focuses on a clause in the 14th Amendment that excludes from birthright citizenship persons not subject to “the jurisdiction of the United States.” Historically, that was intended to exclude the children of diplomats and other foreign dignitaries, and Native people, who were subject to their own sovereign nations. Anton is trying to say that children of undocumented immigrants are different from that of Wong Kim Ark, whose parents were authorized.

There is an unspoken, but I think plainly visible, racialized dimension to this argument, which I see as having developed in response to the predominance, in the 21st century, of Latino immigrants. It runs disturbingly counter to what the 14th amendment gave us, which was a route to citizenship that could not be denied by virtue of race, by virtue of descent, religion, political party, health, wealth.

You are a strong defender of birthright citizenship. But you’ve also written about how it is a “barrier” for undocumented immigrants. How so?

The 14th Amendment was a 19th-century remedy that did a great deal, but it was not designed to grapple with the problem of mixed-status families.

The 14th amendment, in guaranteeing citizenship, was mean to restore and bequeath family integrity to African-Americans. But we now see it functioning to violently separate families. If Michael Anton and I agree about anything, it’s that at this moment we have a humanitarian crisis that requires we rethink our citizenship regime.

The Trump administration’s pronouncements have mobilized historians, who frequently take to social media and Op-Ed pages to debunk various claims, whether it’s President Trump’s comments about Confederate monuments or John Kelly’s claim that the Civil War was caused by an inability to compromise. How clear are the lessons of history?

I don’t think history is a blueprint. It can’t be. There’s too much that’s particular to our own time and place. But I do think the debate about birthright citizenship is here, and you can’t be well equipped for it unless you are familiar with where it begins.

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