The battle over birthright
Can a president decide who gets to be a citizen?
It was precisely the right moment for an anti-slavery group to talk strategy.
“While four millions of our fellow countrymen are in chains,” Frederick Douglass told the American Abolition Society in New York on May 14, 1857, “while men, women, and children are bought and sold on the auction-block with horses, sheep, and swine — while the remorseless slave-whip draws the warm blood of our common humanity — it is meet that we … lift up our hearts and voices in earnest denunciation of the vile and shocking abomination.”
Douglass, who had escaped slavery as a young man, was speaking two months after the U.S. Supreme Court ruled against another man seeking freedom, Dred Scott.
The “infamous decision” not only denied that Scott was free by virtue of living in a free territory but found, Douglass said, that “colored persons of African descent have no rights that white men are bound to respect; that colored men of African descent are not and cannot be citizens of the United States.”
But, Douglass added, the decision’s author, Chief Justice Roger Taney “cannot perform impossibilities. He cannot bale out the ocean … or pluck the silvery star of liberty from our Northern sky. He may decide, and decide again; but he cannot reverse the decision of the Most High. He cannot change the essential nature of things — making evil good, and good evil.”
Douglass’s faith in the abolition movement’s ultimate success proved correct. But it took a war that tore the nation in two for years. In the aftermath, a civil rights act and an amendment to the Constitution guaranteed that people born in the U.S., including the formerly enslaved, are citizens.
As former Supreme Court Justice Stephen Breyer noted in a 2009 speech, the Dred Scott decision is now reviled as “infamous," "notorious," "an abomination," "odious," a "ghastly error," and "judicial review at its worst."
But the cramped view of citizenship embodied in the Dred Scott decision is not completely buried. With an executive order in January, President Donald Trump sought to discard more than a century of legal rulings by radically limiting birthright citizenship.
Federal judges in three lower courts have blocked Trump’s order. On May 15, the U.S. Supreme Court will consider whether those judges should have the power to issue nationwide injunctions against Trump’s stance on birthright citizenship, or whether the judges’ injunctions have to be limited to protecting just those who filed suit.
The ability of a single judge to halt an administration’s policies throughout the nation is controversial, and Trump would not be the first president wishing to rein it in.
But amid all of the technical legal issues facing the court, there is an underlying question about birthright citizenship that will be heard eventually: Can a president’s pen cross out the freedoms granted in the Constitution?
The 14th Amendment
The first sentence of the 14th Amendment to the Constitution, which was ratified in 1868, says, “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.”
Foes of birthright citizenship have latched on to the phrase “subject to the jurisdiction thereof” to attempt to exclude from citizenship children of immigrants who have illegally entered the U.S.
The phrase has generally been interpreted very narrowly, for example, to exclude the children of diplomats living temporarily in this country. But Trump’s executive order seeks to greatly enlarge the exception by excluding a child born to a woman “unlawfully present in the United States” or here on a temporary status, when the father is not a U.S. citizen or permanent resident.
Trump’s order is “blatantly unconstitutional,” according to Federal District Judge John C. Coughenour, a Reagan appointee based in Seattle.
One of the two other judges to block the executive order, Massachusetts-based Federal Judge Leo Sorokin, pointed out that the Supreme Court issued a landmark ruling affirming an expansive definition of birthright citizenship in 1898. “The rule and reasoning from that decision were reiterated and applied in later decisions, adopted by Congress as a matter of federal statutory law in 1940, and followed consistently by the Executive Branch for the past 100 years, at least,” Sorokin wrote.
The purpose of the 14th amendment, the judge noted, was “to recognize as birthright citizens the children of enslaved persons who did not enter the country consensually, but were brought to our shores in chains. … Simply put, the Amendment is the Nation’s consent to accept and protect as citizens those born here, subject to the few narrow exceptions recognized at the time of enactment, none of which are at issue here.”
Exceptions and the rule
In the 1898 ruling, the court allowed that children of Indian tribes, of military invaders occupying U.S. territory and of diplomats were excluded from citizenship by birth.
That case was brought on behalf of Wong Kim Ark, a laborer born in San Francisco in 1873. His parents were citizens of China who returned with him to that country in 1890. He came back to the United States without incident that same year.
But when he tried to re-enter the U.S. in 1895 after another brief trip to China, the customs service wouldn’t recognize him as a citizen. Beginning in 1882, Congress had severely restricted immigration from China. That curb wouldn’t affect Wong Kim Ark if he was indeed a U.S. citizen.
By a 6-2 margin, the Supreme Court ruled in favor of Wong Kim Ark. It found that the U.S. followed the model set by three centuries of British common law in recognizing that children born in allegiance to a government were citizens by right.
“The American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth,” wrote Justice Horace Gray, on behalf of the court majority.
An early call for rights
The argument for birthright citizenship began long before the civil war. In 1838, William Yates, a former newspaper publisher from Troy, NY, authored a book titled Rights of Colored Men. In so doing, as historian Martha S. Jones wrote, “Yates placed a powerful instrument of authority in the hands of free African Americans and their allies.”
“Yates made a bold claim: Free black Americans could not be removed — banished, excluded, or colonized — from the borders of the individual states or the United States,” Jones wrote in Birthright Citizens: A History of Race and Rights in Antebellum America.
Were they citizens? “His answer was yes. Citizenship, he wrote, was distinct from political rights. It ‘strikes deeper’ than, for example, the right to vote. Denied the status of citizens, free black people were not secure in their ‘life, liberty, and property.’”
When Dred Scott’s case came before the Supreme Court two decades later, Chief Justice Taney wrote that freed slaves “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
“On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.”
Fortunately for the sake of the truth, another member of the Supreme Court wrote a dissenting opinion. Justice Benjamin Curtis pointed out that at the time of the adoption of the Constitution, “all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.”
That was a powerful indication that Dred Scott deserved not only freedom but citizenship.
Curtis resigned from the court that year, smarting from a bitter conflict with Taney and concerned about earning enough money to provide for his family.
The ordeal
Dred Scott was in his 40s when he and his wife Harriet first sued for their freedom. Scott argued that they should be liberated because they and their owners had lived for a time in a free state and a free territory.
Eventually, a jury in St. Louis voted in their favor, but the verdict was reversed on appeal, and their defeat was sealed by the Supreme Court.
Even so, Dred and Harriet Scott were freed by their owners in May, 1857, only a couple of weeks after Frederick Douglass’s rousing speech in New York. A little more than a year later, Scott died of tuberculosis, and was survived by his wife and their two daughters.
But the forces their case unleashed could not be contained.
Earlier in 1858, Abraham Lincoln condemned the Supreme Court’s refusal to recognize that living in a free state could be grounds for freeing a slave.
The ruling’s “logical conclusion,” Lincoln told the delegates to the Illinois Republican State Convention in June, was “that what Dred Scott's master might lawfully do with Dred Scott in the free state of Illinois, every other master may lawfully do with any other one, or 1,000 slaves, in Illinois or in any other free state.”
The nation’s struggle over slavery, Lincoln said, “will not cease until a crisis shall have been reached and passed. ‘A house divided against itself cannot stand.’”
“I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be divided. It will become all one thing, or all the other.”
