Birthright Citizenship

A while ago, in the late 20th century, I was a junior year abroad student in Europe, doing my best to find some direction in life. It was an especially high and noisy time for American patriotism. And I remember distinctly one night in the college bar being asked by a fellow student, what, if anything, made me proud to be an American. “Birthright citizenship” jumped out my mouth before I knew it. Not something vague like “freedom” or “world leadership.” “Birthright citizenship,” the fact that anyone born in the United States or its territories was automatically a citizen.

I can’t remember how my drinking companion replied, or how we talked about it, but I was reminded of my reaction to that patriotism and pride question all those years ago, when the issue of birthright citizenship arose during the 2018 Congressional elections. President Trump railed against it, in an obvious attempt to rally his base, and the talk radio circus clowns got in on the act. The issue burned brightly for a little while and was promptly dropped after election day. A thousand lies and misstatements of fact were dumped on the American public, and an awful lot of that flow of fact-free garbage was based on total lack of knowledge about what birthright citizenship was (and is), and how it came to be so strongly in American civic life.

But the debates on immigration to the United States continue, for all kinds of reasons, and the issue of birthright citizenship often comes up, sometimes in the context of “anchor babies” (the offensive term used to refer to children of immigrants born in the United States; the implication being that the birth was planned deliberately to take place in the United States in order to help immigrant parents settle and stay in the country).

Before we get to the history of birthright citizenship and how it’s been used in the United States, let’s get the legal lingo explained and out of the way.

There are two main ways that citizenship in a nation is attained in most countries in the world. One is naturalization. A person lives in a country for a certain period of time, applies to become a citizen based on that residency and maybe has to pass a basic test on the country’s laws and form of government, that sort of thing. But this episode isn’t about naturalization.

It’s about the other way — through birth. There are two types of automatic citizenship through birth: being born in a country; or being born to a parent who is a citizen of a certain country. Different countries use one or the other types of birth citizenship practice, and some, like the United States, use both.

In most parts of the world, being born to a parent who’s a citizen of a country makes you a citizen of that country, no matter where you were born, geographically speaking. A child born in Kenya, for instance, would be an American citizen by birth if one of that child’s parents was an American citizen. A child born in Canada becomes an American citizen by birth if one of that child’s parents is an American citizen. This Canadian example explains why Senator Ted Cruz was eligible to run for President of the United States, despite being born in Calgary. Cruz’s father was Cuban but his mother was an American citizen, and loveable, cuddly Ted is therefore an American citizen by birth. For the same reason, if the stories of Barack Obama being born in Kenya had been true, he would have been an American citizen by birth because his mother was an American citizen. The Constitution insists that a President must be a citizen by birth and he would have been eligible to run and serve as President. But, of course, Obama was born in Hawaii, and he was therefore an American citizen by “jus sanguinis” (the right of blood) through his mother, _and_ “jus soli” (“the right of the soil”) by being born on American territory.

Generally speaking, very few people object to the “jus sanguinis” (the parentage) route of citizenship. But, as I said a little earlier, attacks on the concept of “jus solis” (the right of citizenship by place of birth) crop up every now and then, especially when political emotions and tensions are heightened, during elections for example. And, generally speaking again, those attacks are based on almost complete misunderstanding of what the right to citizenship by place of birth means, and how it has developed and been sustained constitutionally and historically.

And explaining the history behind these kinds of things us what you pay me for. So here’s how it happened.

In the first place, despite what President Trump says (and what candidate Trump said so often) it’s simply not true that the United States is “the only country” that grants citizenship automatically to children born here. Roughly half the world does, including our closest neighbors, Canada and Mexico. I’ve put a world map showing which places grant citizenship by geographic birth and which by parental citizenship in the blog post related to this episode, and I hope you’ll look at it. What you’ll see is that almost countries in the Western Hemisphere grant citizenship to anyone born in their country. A great many of them also grant citizenship by parentage if the child is born outside the country.

A quick glance at that map certainly makes it seems that there is an “old world, new world” divide in terms of how citizenship is granted in different countries. It’s as if countries in the “new world” (the Western Hemisphere) emphasize birthplace citizenship. Countries in the Eastern Hemisphere generally concentrate on citizenship right by parentage alone, but some European countries grant citizenship by parentage and by geographic birth.

Again, what does the US use? Both jus soli (right of the soil – geographic birthplace) and jus sanguinis (right of blood – by parentage).

That’s simple. Why does the issue (or the reaction to it) interest the Buzzkill Institute? Because the _history_ of citizenship in the US is very complicated, and the various ways it’s been addressed, bears on so many other aspects of US history, especially the status of Native Americans, the status of slaves (and freed slaves after Emancipation), and the status of immigrants.

I wish I could tell you that the Founding Fathers enshrined birthright citizenship (both by parentage and by birthplace) in the US Constitution right off the bat. But they didn’t. In short, citizenship was granted to any “_free person_” already living in one of the original colonies, and to any _free person_ subsequently born in the new United States. And of course, the fact that slaves were not free persons excluded them from citizenship. This was based on a legal doctrine of “partus sequitur ventrem,” which means “that which is brought forth from the womb.” Children born of an unfree mother brought their mother’s citizenship status with them. They were slaves, essentially, from birth. Note that I said “unfree mother.” This meant that it didn’t matter who the father was, a slave woman’s child was born a slave. Yes, that meant that children sired by a free father (for instance, a slave owner or an overseer, or any other free man) but born to a slave mother, was a slave. You see what I’m getting at here. Most historians believe that Thomas Jefferson and his slave Sally Hemings had six children together. But all of those children were born slaves (and not citizens), even though their father was a free, white man, and one of the founders of the country in which they had been born.

Birthright citizenship for slaves, former slaves, and freed peoples was not settled until the passage of the Civil Rights Act of 1866, and the ratification of the 14th Amendment in 1868. And, essentially, it took the Union victory in the Civil War and the passage of the Emancipation Proclamation in 1863 to put that issue at the heart of American Constitution.

But it was a close run and controversial thing before the Civil War. The famous (or infamous, depending on who you talk to) 1857 Dred Scott decision by the Supreme Court said that African-Americans could never become citizens of the United States because, in the court’s majority view at the time, the Constitution did not guarantee it to them, even those who were free (former slaves – “freedmen” or free black persons born in the north, for instance).

The Dred Scott case deserves a show of its own, and we will probably do one, but, essentially here’s what happened. In a ten-year legal case starting in 1846 that eventually ended up in the Supreme Court in 1857, Dred Scott, the slave of an army officer, tried to gain his freedom by arguing that he had lived (with his master) in a free state (Illinois) and a free territory (Wisconsin) for four years. The Supreme Court ruled against him, in a 7-2 vote, saying that, “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” could not be an American citizen, no matter if he was himself free or still a slave. It was obviously a purely racial decision, and the arguments against it, helped keep the issue in the national debate for the rest of the 1850s.

For example, in 1862, the US Attorney General, Edward Bates wrote that the Constitution,

…recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

Bates wrote this in a response to a letter from the Treasury Secretary, Samuel Chase, who had written to him, enquiring about the citizenship status of free African-Americans. And it, I think, represents the growing change in government opinion between the Dred Scott decision and the early years of the Civil War.

Two further decisions sealed the matter. During Reconstruction, Congress passed the Civil Rights Act of 1866, which said, “… 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.” Notice that it said, “Indians not taxed.” This meant Native Americans living on tribal reservations. But keep this exclusion in mind, because it’s important and we’ll get to it after the break.

And, of course, the most important government statement about birthright citizenship was the 14th Amendment to the Constitution, ratified in 1868. It 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.”

You would think that that was as clear and direct as it could be. But history rarely lets us off that easy.

During the first half of the show, I kept using terms like “native born,” “natural born,” and “born in the United States.” You would think that, at the very least, those concepts would apply to the original native born inhabitants of what became the United States. But, as you might have guessed when I mentioned “Indians not taxed” as being left out of the Civil Rights Act of 1866, that the legal citizenship status of Native Americans was not as clear and obvious as it should have been.

In what is bound to be one of the biggest ironies in American history, and especially regarding birthright citizenship, “Native Americans” (indigenous peoples) were not, both generally and technically speaking, citizens of the United States. At least not until 1924, nearly fifty years after the 14th Amendment was added to the Constitution.

And in some ways, the history of their path of citizenship (if you don’t mind me using a phrase from the debates these days) is more complicated than that of African-American slaves and their descendants.

That’s because the Constitution, in Article 1, defined categories of persons to be counted in each state’s population for the purposes of determining the number of representatives that state would be granted in the House of Representatives. Originally, the idea was to count only white people. But since the white population of southern, slave-holding states was so much smaller than the white populations of northern states, the famous three-fifths compromise was adopted. In addition to the number of white people in a state, the constitution allowed southern states to count three-fifths of their slaves in their total population statistic for congressional representation. They didn’t grant those slaves three-fifths of citizenship rights or anything like that. It was a pure political deal to get the slave states to ratify the Constitution.

At the same time, the Constitution excluded “Indians not taxed” in a state’s population total. Essentially, this meant that Native Americans who lived on tribal lands and who had made agreements or treaties with states to be recognized as Indian nations were not to be considered citizens. These were the “Indians not taxed,” which, obviously, was different from Indians who were taxed. “Indians who were taxed” were Native Americans who had more or less left their tribal lands and traditions, and who had started to live in white society. They were to be considered citizens, and their children were.

This is part of the highly complicated history of US government relations with indigenous peoples. For all sorts of reasons, many Native Americans lived as their own nations and were regarded by the new US government as kind of separate “nations within the boundaries of the United States.” But those people were not granted rights by the American government and, as you undoubtedly know, were more or less treated however the US government wanted to treat them at whatever time. Indian wars and other incursions were made whenever westward expansion brought eastern, white Americans into the west. Obviously, these topics deserve shows of their own, but the specific citizenship question was not a quiet one during the 19th century.

After the Civil War, and while he was still General of the Army, and later when he was President, Ulysses S. Grant, tried to change (and, in his mind, improve) relations between the Federal government and Native American groups and nations. Grant seems to have been motivated by least two things. The first was his gratitude toward Native Americans who had served in the Union Army, especially his military secretary, Ely Parker, who was from the Seneca Nation. The second was the distressing reports he kept getting about the behavior of white settlers in the west. Migrant farmers and cattlemen were encroaching on Native American land. Railroads were being built on contested land, and miners often did not respect land boundaries when prospecting.

Calling Native Americans “the original occupants of the land,” in his 1869 inaugural address, Grant envisioned a future in which they would become eligible for full citizenship. This would happen, Grant thought and argued, through a process by which Native Americans would be allowed (indeed, encouraged) to participate in white American society, and gradually trade their ancestral lands and traditions for the benefits of modern American life. Even this highly “assimilationist” approach to citizenship for Native Americans was too much for most of the Congress and governmental elites. During the entire course of his presidency, Grant’s various attempts to open up military and other governmental positions to Native Americans were thwarted by Congressional opposition.

Not only that, significant numbers of Native Americans, especially leaders of nations and tribes, opposed what they saw as having United States citizenship forced upon them. Not only were they understandably suspicious of overtures and promises from the US government, they worried that assimilation would, eventually, kill off their Native American culture and identity.

The supremacy of tribal citizenship over US citizenship seemed to be confirmed by the Supreme Court in 1884. Johh Elk, a Native American from the Winnebago nation, tried to renounce his tribal citizenship and claim US Citizenship in order to vote in 1880. The Court decided that Elk owed his true allegiance to his tribe, and that allegiance prevented him from sincerely desiring US citizenship. The court, therefore, denied John Elk’s US citizenship claim.

For the next forty years, debates went back and forth about whether Native Americans were a special case because of the idea that they couldn’t have divided loyalties between their tribe and the US government. It’s pretty clear that, at least from the anti-Native-American-citizenship side amongst white Americans, this was all based on race and ethnicity. Practically no one claimed, for instance, that European immigrants in the 19th century could be denied naturalized citizenship based on any prior allegiance. But hold on to this thought, Buzzkillers, because it’ll come up again, before the show’s over.

Native American citizenship in the United States wasn’t finally settled until, more or less, the middle of the 20th century — well within, that is, living memory. The Indian Citizenship Act of 1924, passed over some white opposition and Native American opposition, said, “That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.” Much of the grateful sentiment toward Native Americans who had served in the US military during World War I was behind the push for the Act, but so was pressure from progressives and reformers in the early 20th century.

But the 1924 Act only made citizenship provision for Native Americans born after it was enacted, it wasn’t until the Nationality Act of 1940 that all persons born in the United States (even those born before 1924) were granted birthright citizenship. Even so, some states with-held voting and other rights from Native Americans, a practice which lasted until finally abandoned by those states in 1948. Again, that’s well within the living memory of at least my parents’ generation.

As I said earlier, most historians of late 19th and early 20th century American believe that opposition to Native American citizenship was based on race and bigotry against those groups. You would be quite right in shouting at your radio or computer or mobile phone or whatever you listen to this podcast on, that this represented a great hypocrisy. Immigrants from other parts of the world weren’t held to the same “loyalty” standards as _Native_ Americans who desired citizenship.

Well, yes and no. And I’ll finish up this episode by briefly explaining the 1898 Supreme Court case of United States v. Wong Kim Ark, which was, more or less, the Supreme Court case that provided the strongest (and most strongly-worded) precedent for what we now consider birthright citizenship.

Born in San Francisco in 1873 to Chinese immigrants, Wong Kim Ark would normally have been considered a US citizen because he being born here, as the idea of jus soli (right of the soil) had it. But Chinese immigrants, like Wong Kim Ark’s parents, in the late 19th century faced a great deal of racial discrimination, and US citizenship was denied to them on the somewhat technical grounds that the Emperor of China still regarded them as his subjects, and were (again, technically) under his control. Again, no serious scholar doubts that these restrictions were based on racism towards Chinese immigrants (and only used the “were subjects of the Emperor of China” as a rationalization).

In late 1894, Wong Kim Ark went on a trip to China. When he tried to return home to San Francisco in early 1895, he was denied entry into the US based on laws then current that attempted to curb the rate Chinese immigration. Having been born in the United States, Wong Kim Ark sued in court, arguing that he was a natural born American citizen. His case worked its way up through the courts until it reached the Supreme Court in 1898. The court ruled in Wong Kim Ark’s favor and he was admitted back to the United States and permitted to exercise his citizenship

Even though, chronologically, this Supreme Court decision came before the Indian Citizenship Act of 1924 and the subsequent laws relating to it in the 1940s, I want to end the show with the Wong Kim Ark case because the specific language used in the decision, and the rhetorical power with which it was expressed by its author, Associate Justice Horace Gray, is such strong support for the legal and constitutional fact that birthright citizenship in the United States means exactly that, birthright citizenship.

the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens… The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

And even though it gets questioned and challenged sometimes, birthright citizenship has been constantly reaffirmed by the Supreme Court, and championed by sane and sensible voices in our country. In the last few years, we seem to be living in the shadow of increased hatred and discrimination in the United States, and I just hope that, as far as birthright citizenship is concerned, we’re able to overcome that angst and live up to this vital American principle. And I take a great deal of American pride in the fact that my feeling on this, and the strength with which I hold it, hasn’t changed since I expressed it as an college student in a foreign land all those years ago.

Further Reading:

Mary Stockwell, Interrupted Odyssey: Ulysses S. Grant and the American Indians

Garrett Epps, The Citizenship Clause Means What It Says, The Atlantic, Oct 30, 2018.

Buzzkill Bookshelf

Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.

Democracy Reborn tells the story of the desperate struggle, from the halls of Congress to the bloody streets of Memphis and New Orleans, to pass the Fourteenth Amendment. Scholars call it the “Second Constitution.” Over time, the Fourteenth Amendment―which at last provided African Americans with full citizenship and prohibited any state from denying any citizen due process and equal protection under the law―changed almost every detail of our public life.

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