Americans Have Always Had Birthright Citizenship - If They Were White

Dred Scott.

A few years ago I published a law review article.

​Hardly anyone read it, not least because it was on a subject that at the time seemed barely worth discussing: birthright citizenship in the United States Constitution. And yet that subject is now suddenly a hot button issue in the news.

Specifically, I was tracing a connection between the birthright citizenship guaranteed in the Fourteenth Amendment and the “Natural Born Citizen” clause in Article II. ​

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​My argument, in a Charles Black-inspired structuralist style, boiled down to this: Although the Fourteenth Amendment did not become a part of the Constitution until 1868, the better part of a century after the original document was drafted, Article II presupposes the existence of birthright citizenship. This is because the term “natural born citizen,” though undefined, has always been understood to mean someone who becomes a citizen at the moment of birth. Because Article II says that only natural born citizens are eligible for the presidency, at least some citizens must meet that qualification (otherwise the constitutional order would self-destruct when it turns out that no one qualifies for the presidency). That means some must have had citizenship from the moment of birth, as a matter of birthright.

In fact, the idea that at least some Americans have always had birthright citizenship was not controversial at all as of 1868. Researching the article taught me just how far back the tradition goes.

Continental Europe historically followed jus sanguinis, the right of blood, under which children take the citizenship of their parents. But England, the eventual progenitor of all common law jurisdictions including the United States, followed jus soli, the right of the soil: if a child was born in England, regardless of his or her parents’ citizenship, the child would be an English subject. Already well-recognized by English courts by then, jus soli received statutory affirmation in 1368 during the reign of Edward III (42 Edw. 3, c. 10).

Indeed, English law treated jus soli as the dominant principle so that the controversy was over whether children born to English subjects abroad would also be English, i.e., whether some kind of jus sanguinis would also be allowed.

Upon independence, although the newly formed United States consciously abandoned the British system of government, it never abandoned the principles of British common law. After all, that was what the Founding Fathers had grown up learning. They could no more renounce it than they could renounce their own upbringing. Although, much later, influential scholars such as Charles Beard taught us to think of American Founders as birds of a feather with French Philosophes such as Montesquieu, The Spirit of the Laws was less important to Jefferson and Adams and Madison than Blackstone’s Commentaries on the Laws of England. As the original Constitution never define citizenship nor suggested any departure from a British understanding of that idea, it was universally understood that jus soli would prevail in America. Anyone born in America would be not only a U.S. citizen but a natural born citizen, a citizen as a matter of birthright.

Unless, of course, you were “colored.”

It is often said that slavery is America’s original sin. Its obvious immorality and illogic wrought havoc on the Shining City on the Hill from the very beginning. The Electoral College, which allows the possibility (and the reality in both 2000 and 2016) of a candidate losing the popular vote but winning the presidency, was invented to placate Southern slaveholding states: they could neither allow their slaves to vote nor stomach the electoral consequences of having a majority of their residents not voting. So similarly although everyone understood that birth in the United States conferred citizenship, slaveholders in the South refused to admit that they were keeping their fellow citizens in bondage.

That contradiction came to a head in 1857, when the Supreme Court decided Scott v. Sandford. The question was whether Dred Scott, a black man born into slavery in Virginia, could become free and be deemed a citizen by virtue of having moved to a free state. Chief Justice Roger Taney, a Virginian slaveholder appointed by “Indian Killer” Andrew Jackson, ruled that no matter what, no black person could ever be an American citizen, because black people were only “property,” like farm animals.

The Scott decision was the catalyst that brought Abraham Lincoln to national prominence and eventually to the presidency. And it was a major factor leading to the Civil War. And after the war came the Fourteenth Amendment, which really only repeated what was already the law — jus soli — even before the war and even before the founding. By making the principle explicit, the Amendment was saying that no longer could the hypocrisy continue that some Americans, namely white ones, would enjoy birthright citizenship, while their peers with darker skin tones would be denied that right.

Wong Kim Ark in 1904.

The Amendment faced its great test in the subsequent landmark case of United States vs. Wong Kim Ark (1898). A much more enlightened Supreme Court now held that, yes, the Fourteenth Amendment meant what it said. One born in California, even if he was — gasp! — Chinese, must be deemed a citizen as a matter of birthright, despite the Chinese Exclusion Act, which outlawed Chinese immigration.

(Incidentally, U.S. citizenship law for a long time was also deeply sexist. The Expatriation Act of 1907 stripped American women of their citizenships if they married foreign men. The Cable Act of 1922 amended that rule so that now American women lost their citizenships only if they married Asian men but not white foreigners. Yes, you read that right.)

It’s worth remembering all of this today. There has always been birthright citizenship in America. But, for much of the country’s history, Americans refused to apply it to half of their own people purely out of racism. The suggestion now to abrogate birthright citizenship is no different. Unless birthright citizenship is guaranteed to everyone of every background born in the country, it will always only be the likes of Dred Scott and Wong Kim Ark who get their citizenships challenged.

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