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Trump and Birthright Citizenship
00:41:37
President Trump wants to end birthright citizenship as part of his multifront campaign to close American society to foreigners. A federal judge has temporarily blocked his executive order attempting to abolish part of the Constitution -- . The...
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- [00:01]
Advertiser
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- [01:03]
Martin DeCaro
Vote history as it happens. January 31, 2025 Trump and birthright citizenship and it's ridiculous.
- [01:13]
Eric Foner
We're the only country that has it, and certainly the only country that has it to that extent. And it wasn't meant, if you look, it was really meant for children of.
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Advertiser
Slaves because of this invasion that it is a war zone down there.
- [01:26]
Historian
This historic executive order to end birthright citizenship marks a critical step.
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News Reporter
Nearly 400,000 expectant mothers cross the border illegally in hopes of giving birth in the United States.
- [01:38]
Advertiser
A federal judge in Seattle just signed a temporary restraining order blocking Trump's executive order on birthright citizenship, effectively preventing the enforcement of it derives from Section 1 of the 14th Amendment, which reads in part, all persons born.
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Martin DeCaro
Executive order attempting to eliminate birthright citizenship in America. With the stroke of a pen, President Trump tried to cancel part of a transformer constitutional amendment. Section 1 of the 14th amendment grants U.S. citizenship to anyone born in America, with a few exceptions. Motivated by nativism and demographic paranoia, the President's executive order raises a question as old as the republic. Who is a real American? And it evokes the language of the worst Supreme Court decision in our history. That's next with Eric Foner as we report history as it happens. I'm Martin DeCaro.
- [02:31]
Historian
You know, the battle over citizenship had been going on for many years. Years before the Civil War, free African Americans had held numerous meetings trying to claim the rights of American citizenship. Of course, in 1857, the Supreme Court in the Dred Scott decision, declared that no African American person free or slave could be a citizen of the United States. The 14th Amendment was intended. One of its points was simply to overturn Dred Scott.
- [03:04]
Martin DeCaro
At a GOP retreat at his Florida resort, President Trump delivered a history lesson.
- [03:09]
Eric Foner
And as we are fighting hard to get birthright citizenship or automatic citizenship for the children of illegal aliens, that's another way. It's automatic citizenship for children of illegal aliens. That's the other term that they use, which is actually more accurate, more, more understandable, and it's ridiculous. We're the only country that has it, and certainly the only country that has it to that extent. And it wasn't meant, if you look, it was really meant for children of slaves. This is when it happened. The children of slaves. It was not meant for everyone to come into our country by airplane or charging across the borders from all over the world and think they're going to become citizens. It's not meant for that. It wasn't meant for that. And hopefully at some point the courts will understand that without having to go through a hole. Big deal. This was meant for the children of slaves. And look at the timing of it, and you'll see, and I hope judges will understand that, and it has to stop.
- [04:07]
Martin DeCaro
Well, Trump got a little of that right. The immediate context for the amendment's framers was indeed the aftermath of the Civil War and the status of newly freed African Americans who had been treated as citizens in some Northern states, as property in the slave holding South. Trump ignored the broader purpose of birthright citizenship, which was to define for future generations what citizenship would mean, because it had always been contested and meant different things in different states. And that caused a lot of problems. Trump's executive order attempting to end birthright citizenship stands history on its head, and it echoes the infamous Dred Scott decision of 1857. Even as Trump's order labels Dred Scott a shameful decision, the executive Order ignores the clear language of Section 1 of the 14th Amendment by inventing new exceptions to the word all in 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. Here is White House spokeswoman Caroline Levitt's nonsensical explanation of the administration's position.
- [05:16]
Advertiser
This administration believes that birthright citizenship is unconstitutional, and that is why President Trump signed that executive order. Illegal immigrants who come to this country and have a child are not subject to the laws of this jurisdiction. That's the opinion of this administration. We have already appealed the lawsuit that was filed against this administration and we are prepared to fight this all the way to the Supreme Court if we have to, because President Trump believes that this is a necessary step to secure our nation's borders and protect our homeland.
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Martin DeCaro
People who aren't subject to the jurisdiction of the United States today are foreign diplomats or invading armies. I'm sure you've heard of diplomatic immunity. Immigrants, legal or unauthorized, are of course subject if they break the law, they can be arrested. Now Trump's order says there are other exceptions when the baby's mom was in the US Illegally and the father was not a US Citizen or lawful permanent resident at the time of the baby's birth, or when the childbearing mom is in the US Legally, but only temporarily, such as visiting the United States under the auspices of a visa waiver program or visiting on a student, work or tourist visa. In those two proposed exceptions, the baby would not be given birthright citizenship. As the President put it, birthright citizenship was never meant for these people. And we know whom he's referring to migrants from the Global South. Now here is Justice Roger Taney, page 259 of Kate Maeser's Until Justice Be Done, Taney insisted that no one could have imagined free African Americans as citizens when the nation was founded. The egalitarian promise of the Declaration of Independence had long been a talisman for the anti slavery movement. Now Taney confidently claimed that the nation's founders never meant for the Declaration to apply to people of African descent. Echoing the resolutions adopted by the legislatures of Georgia and South Carolina in the 1840s, Taney insisted that free black people had formed no part of the political body in the founding era. They were not intended, he said, 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. Again, the words of Roger Taney in the Dred Scott decision in Kate Maeser's Until Justice Be done. Now in 1898, birthright citizenship was put to the legal test. I bet you've never heard of Wong Kim Ark. He was born in San Francisco in 1873. His parents were Chinese and they'd been living in the US for 20 years. When Wang turned 21, he traveled to China but was not allowed back in the United States because the Customs collector decided, 14th amendment be damned, that Wang was not a citizen under the Chinese Exclusion Acts. The case made it to the supreme court in a 6, 2 decision. The majority agreed that Wong Kim Ark was a citizen. Reading here from an article@constitutioncenter.org, justice Horace Gray's majority opinion stated that Wong Kim, Arkansas, having a permanent domicile and residence in the United States, became at the time of his birth, a citizen of the United States, although his parents were not U.S. citizens. Gray wrote that the 14th Amendment citizenship clause conformed with British and American common law when it came to people born in the US as having claims to citizenship with limited exceptions. These exceptions were limited to children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state. The other exception, children of members of the Indian tribes, was particular to America, standing in a peculiar relation to the national government unknown to the common law. And that issue has since been rectified by Congress. Now, this article goes on to say that Gray determined the Chinese exclusion Acts did not affect Wang citizenship status. The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution. Broad and clear words. Now, there was a dissent in that case, Chief Justice Melville Fuller, joined by Justice John Marshall Harlan. They claimed the government had the power, notwithstanding the 14th Amendment, to prescribe that all persons of a particular race or their children cannot become citizens. Another way of putting it is birthright citizenship was never meant for them. From the 1860s to the 1890s to today, some Americans have a narrow idea of who gets to be a real American, and that is the deeper issue we are confronting. Again, if successful, Trump's effort to end birthright citizenship would profoundly affect American society. Just consider these figures cited in the New York Times. Since 1990, over 29 million children were born from immigrants, legal and unauthorized. In 2016, babies born from unauthorized immigrants accounted for 6% of all births.
- [10:25]
News Reporter
The IS also estimates that nearly 400,000 expectant mothers cross the border illegally in hopes of giving birth in the United States.
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Martin DeCaro
Fear that the wrong kind of people are crossing the southern border and having babies. Here is what's behind legislation by Republican congressmen who are seeking to codify an end to birthright citizenship.
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News Reporter
Common sense tells me that these folks ain't over here on vacation, y'all, and just happen to go in labor. They're coming across that border down there illegally, and they're using us like the international piggy bank. Well, two things are about to happen. Number one, that border's gonna be closed. Illegal immigration. Don't come across it unless you come across it legally. Number two, if you want to Come into this country from now on. This is America first. Come over here. Help assimilate and advance the American culture.
- [11:15]
Martin DeCaro
The language of the 14th Amendment is universal. As Eric Foner wrote In his monumental 1988 book Reconstruction, the amendment clothed with constitutional authority, the principal radicals had fought a lonely battle to vindicate equality before the law overseen by the national government. For its heart was the first section, which in its final form declared all persons born or naturalized in the United States both national and state citizens, and prohibited the states from abridging their privileges and immunities, depriving any person of life, liberty or property without due process of law or denying them equal protection of the laws. For more than a century, Foner writes, politicians, judges, lawyers and scholars have debated the meaning of this elusive language. Yet, Foner says, to reduce the aims of the framers of the 14th Amendment to some narrow interest. He says this is to misconstrue the difference between a statute and a constitutional amendment. Some amendments dealing with narrow immediate concerns can be thought of as statutes writ large, altering one aspect of national life. They leave the larger structure intact. Others are broad statements of principle, giving constitutional form to the resolution of national crises and permanently altering American nationality. The 14th Amendment was a measure of this kind. In language that transcended race and region, it challenged legal discrimination throughout the nation and changed and broadened the meaning of freedom for all Americans.
- [12:40]
Eric Foner
I think the real number is 15, 16 million people into our country. When they do that, we got a lot of work to do. They're poisoning the blood of our country. That's what they've done.
- [12:50]
Martin DeCaro
Eric Foner is one of the greatest living historians in our country, professor emeritus at Columbia University, and the author of the aforementioned Reconstruction America's Unfinished Revolution, 1863-1877. Welcome back to the podcast.
- [13:06]
Historian
Very nice to talk to you.
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Martin DeCaro
Every time I talk to you, it's about the 14th amendment. It seems, I guess we should not be surprised. This amendment keeps coming back. The subject may be old, but the issues are fresh. To borrow the words from your 1988 book, it's more than a statute writ large. You can look at like the amendment to ban alcohol. That was a narrow interest. This had a universal quality. You've called it part of the Second Founding. What do you mean by Second Founding?
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Historian
Anybody interested in American history knows about the Founders or the Founding Fathers, if you want to use those terms. The people who wrote the Constitution ratify it. It established a Republican form of government in the United States, but 75 or so years later we had the Civil war. And the 14th amendment in my view should really be understood as an attempt to put the results of the Civil War into the Constitution. The Constitution had failed to prevent the Civil War. It had failed to deal with the issue of slavery in the pre war period. Now with the destruction of slavery and the preservation of the Union, the country was refounded. The Second Founding. In a little more detail, we should look at this 14th amendment. In fact, the three reconstruction amendments, 13, 14 and 15th, as more than just minor changes to an existing document. They really created a new Constitution. They were the first amendments that really dealt with the rights of American citizens. They were the first to put the question of slavery in its abolition. The word slavery was put into the constitution in the 13th Amendment for the first time. The original Constitution did not mention slavery directly. It spoke about other people or persons held to labor circumlocutions. So basically the argument of calling these amendments the second Founding is that we have to look at them as important as the original founding founding and the original adoption of the Constitution.
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Martin DeCaro
I mean, the 14th Amendment proved so controversial over the next several decades. And this is a subject we have discussed, although it has been a while. There are a number of Supreme Court cases that essentially tried or did render the 14th Amendment useless in many respects.
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Historian
Well, of course, the 14th Amendment is the longest amendment ever added to the Constitution and it covers a wide variety of issues. As you mentioned a few minutes ago. The first section is the key section, of course, which creates birthright citizenship, which of course is now a controversial issue. It puts the idea of equality among citizens into the Constitution. The word equality doesn't appear in the original Constitution except when they're talking about two candidates getting an equal number of electoral votes. Things that don't really have to do with equality as we understand it. We remember the people who wrote the original Constitution. James Madison, Hamilton, John Jay, some of the others. Not too many people can name people who were responsible for the second founding. John Bingham of Ohio, who wrote the first section. Other members of Congress in the Reconstruction period who gained the approval of the Reconstruction Amendments from Congress and later from sufficient number of states. People don't remember Bingham and the others, but we should think about them more and what they were trying to accomplish. If we call them the second Founding, it sort of makes us realize how important these measures were in shaping the political system that we live under today.
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Martin DeCaro
Yeah, there was an immediate political context that they were dealing with, but they also had a vision for what our country should be.
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Historian
That's a very good point. Of course, you know, the battle over citizenship had been going on for many years. Before the Civil War, free African Americans had held numerous meetings trying to claim the rights of American citizenship. Of course, in 1857, the Supreme Court, in the Dred Scott decision, declared that no African American person, free or slave, could be a citizen of the United States. The 14th Amendment was intended. One of its points was simply to overturn Dred Scott and to sever the link between race and citizenship for the first time in American jurisprudence. The funny thing about the 14th Amendment in that sense is that the original Constitution mentions citizens in a number of places, but it never defines who is a citizen of the United States. You've got to be a natural born citizen to be president. But again, that's not really defined in the original Constitution. The abolitionist movement had insisted before the Civil War that that slaves should not only become free, but should be recognized as equal members of the political system. Black people should have the same civil rights, political rights as white Americans. So in other words, the 14th Amendment should be seen as a culmination of a long struggle to define who is an American and who has a right to the basic principles of American political culture. That's still a debate that we are engaging in right now.
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Martin DeCaro
The language, section 1, 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. That is the first sentence of Section 1. At the time, at the time, opponents of the 14th Amendment said this wording is too broad and that will be a problem, not an asset. We look at it today, I hope, as an asset. We want that universal language. But the opponent said, you know, you're gonna include way too many people that we don't maybe don't want to have under this umbrella. Do you think opponents of birthright citizenship today are making that same argument? The language is too broad or was never intended for this or that, or are they arguing something else?
- [19:27]
Historian
Well, I've read the executive order that President Trump put out not long ago to abolish birthright citizenship. Lurking behind this is the question or the ideology of the great Replacement, the idea that too many people of the wrong kind are becoming citizens. This has always been a debate in American history. Who should be entitled, who should have the right to vote. What kind of qualifications do you need? Women couldn't vote for a long, long time. Of course, people without property couldn't vote in many states for a long time. The opponents of birthright citizenship are within a tradition in history of limiting access to citizenship, that this is a country with a very specific culture, political history, et cetera. So basically, white Christians are the ones who ought to be recognized as citizens of the United States. But as we said, this debate's been going on for a long, long time and no doubt will continue.
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Martin DeCaro
He recently wrote a column or an essay for the Nation magazine that was about the history of colonization in the context of today's debate about whether the United States should expel undocumented immigrants. And you said this is part of a long debate about who can claim to be a real American. So, I mean, I agree with you. I often say it's what kind of country do we want to be? Who gets to take a seat at the barbecue of this great American experiment that we're having? Who gets to partake in that barbecue?
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Historian
Political scientists and others talk about different notions of citizenship. One is ethnic, a kind of an ethnic Americanism, where you've got to be. To really be an American, you've got to have a certain culture, a certain ethnic heritage. That kind of notion is common. Let's say in Germany, a Volk. A particular kind of people can be citizens of Germany. If you can be born in Germany, live most of your life in Germany, if your parents were not German, you're not a citizen, or you have to go through a whole process to become a citizen. The other is birthright, that if you're born in the country, you are automatically a citizen. That's what the 14th Amendment puts into the Constitution. But before it, the Civil Rights act of 1866 was passed by Congress over the veto of President Andrew Johnson, who held the same Trumpian view of citizenship. Another purpose of the 14th Amendment was, you might say, to constitutionalize the Civil Rights Act. The Civil Rights act, enacted just a little while before the 14th amendment, was the first statutory definition of citizenship in American history. Again, it also said anybody born in the United States is a citizen, with a couple of exceptions. In that law, it excluded what they called Indians, not taxed. Indians living on reservations were considered citizens of their own tribal sovereignty. They called them nations, the Cherokee Nation, the Choctaw Nation, so they could be born in the United States but weren't automatically citizens. But down in 1924, Congress enacted a law making all Native American citizens, regardless of whether they lived on a reservation or in cities or whatever. Overall, the principle of the 14th Amendment is, as you said, inclusion, that people born here should be recognized as Americans with all the same rights. As I said, first section, the Equal protection of the law applies to everybody, not just citizens, but all persons in the United States, according to the 14th amendment, are entitled to the equal protection of the law and the privileges and immunities of citizens, whatever those are. Those have to be explained also. But I think the point you made is the key one. The Harper's Magazine in the Reconstruction era said that the 14th Amendment changed a constitution for white men into a constitution for mankind. They hadn't gotten around quite to including women in many of the definitions of citizenship, but that would come also some years later in the 19th Amendment, and.
- [23:57]
Martin DeCaro
It limited the power of the states to impinge or infringe on the rights of people. I mentioned before this notion of citizenship that we might take for granted today, although I guess we shouldn't take anything for granted anymore in those days. You may have thought of yourself as a citizen of a state today. I mean, I've lived all over the country during the course of my career. I consider myself a citizen not of an individual state, although I am, or of a city right now, the District of Columbia. I consider myself an American citizen and everything that comes with that.
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Historian
Well, you know, you read the first section, and it begins by saying that all persons born in the United States are citizens of the United States and of the state in which they reside. So the reason they put that in where you have two kinds of citizenship, national citizenship and state, is that they were afraid. Congress, the Republican Party, the people who had abolished slavery, they were afraid that if you just said they're American citizens, states would refuse to recognize them as citizens. In other words, someone in Texas, let's say, could say, well, okay, Massachusetts lets black people be citizens, but we don't have to do that. That's not our way of doing things. We just limit citizenship in one way or another. Back then, they might very well have said, well, we don't want people of Hispanic heritage becoming citizens. And there were a lot of them in Texas, obviously. So they wanted to make sure that no type of citizenship could be denied either by the federal government or by the state governments. And later on, people who wanted to limit the 14th Amendment would exactly say this, that, well, look, these people are not citizens of this state. In a way, Trump's executive order recoups that idea, because one of the things to say is that the children born to undocumented immigrants will not be given birth certificates, passports, they will not be given driver's licenses. They will not get documents demonstrating that they are citizens of the United States. If a state doesn't Want to do that.
- [26:08]
Martin DeCaro
They're saying they're not subject to the jurisdiction thereof. Of course they are. They're twisting the meaning of that phrase. And, you know.
- [26:15]
Historian
Yes, well, that's now become the phrase that is used by those who are promoting the end of birthright citizenship. All persons born in the United States and subject to the jurisdiction thereof. What does that mean? Well, go speeding on IA95 and you'll find out. If you are subject to the jurisdiction of the United States, you're not free from that jurisdiction. The people that applied to were either Native Americans, as I said, who were under the sovereignty of their native nation, a very small number, diplomats and their families, who had diplomatic immunity. So if the wife of the British ambassador gives birth to a child while they are here in the United States, that child is not a citizen because they have diplomatic immunity as diplomats. They don't have to abide by all the laws of the United States either.
- [27:11]
Martin DeCaro
Also, invading aliens, meaning that today, Eric, if the Chinese army invaded New York City and a general had a child with his wife there in a few months, that child would not be considered a citizen.
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Historian
Well, yeah. Or also women raped in the course of an occupying war.
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Martin DeCaro
I bring up this somewhat silly example of invading aliens because it's not a coincidence that Trump appointees and Trump himself refer to undocumented or unauthorized immigrants coming to our country as an invasion.
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Advertiser
My hope is that if given the opportunity to serve as secretary, that the federal government would no longer, and I believe, as President Trump has promised, the American people, facilitate an illegal alien invasion.
- [27:56]
Historian
Yes, that is absolutely right. They use the word invasion in order to. Which is obviously metaphorical when you're talking about people coming across the border. You know, they may not be abiding by the rules, but they also use invasion because there are laws preventing the use of the army to combat invasions. If asked by the governor, Trump, as we've seen, wants to use the army to deport millions of people who are here. But, you know, one can look around for exemptions to the 14th Amendment, but the basic issue is whether people of all backgrounds, of all races, of all ethnic origins can be good American citizens. Or if you have to be a member of a specific group, like before the Civil War, as I said, the Supreme Court said only white people could be citizens of the United States. Your parents could be free Negroes, going way back to the revolutionary era, but that did not allow you to become an American citizen, according to the Supreme Court. And the Dred Scott decision was roundly denounced by Abraham Lincoln. And by many other antislavery figures. Lincoln said that he wouldn't even abide by it, that it was such a wrong headed decision it ought not to be respected. It's worth mentioning that the 14th Amendment has several other sections which are. All of them, as I said, are trying to deal with issues that came out of the Civil War. Section two is sort of a compromise about whether black men should have the right to vote. The Republican Congress was basically unanimous in supporting citizenship for black Americans and others born here. But they were divided. The Republican Party, the Radical Republicans, thought that black men should be allowed to vote if they're citizens now. And that's part of what it is to be a citizen. Moderate or conservative Republicans were afraid that black suffrage, even though slavery was ended, that a lot of white Americans were not willing to accept black voting. Almost no states allowed black men to vote before the Civil War, just a handful in New England. And basically it said if a state denies to any male citizens the right to vote, they will lose some of their representation in Congress. It's a compromise between those who want all men to vote and those who don't want any non whites to vote. You can go to the third section, which people had not paid much attention to until not that long ago. The Supreme Court had to rule whether Donald Trump was allowed to run for president. Because Section 3 of the 14th Amendment says if you take an oath to support the Constitution and then you engage in insurrection, you cannot hold any office subsequently. You remember it went to the Supreme Court. Supreme Court said, no, we can't deny someone the right to hold office that hadn't been adjudicated for a long time. Section four deals with another thing that popped up almost out of nowhere recently, which is the so called debt limit. The national debt has to be respected. We've had all these almost defaults by Congress of not appropriating enough money to pay debts that have been incurred by the United States to redeem the bonds of the federal government. And Republicans in Reconstruction wanted to make sure that the national debt was respected. And national debt is sort of a symbol of the nation in a sense, the integrity of the nation. They were afraid that if the ex Confederates got into office, if Northern Democrats got into office, they would refuse to recognize the national debt that had been incurred in order to fight the Civil War. I don't even know if there is any jurisprudence about this particular section. The fifth section is very important. And the 13th, 14th and 15th amendments all have this same final section which says Congress shall have the power to enforce this amendment by appropriate legislation. It's saying reconstruction is not over, folks. There may be more measures necessary in order to establish a government which respects the rights of man, which respects the rights of all people, regardless of race. And Congress has the power to implement new measures based on the 14th amendment. I'll just give you one other example there of why this is important. The Bill of Rights, the First Amendment begins, congress shall make no law respecting the freedom of speech, religion, et cetera. It applies only to the federal government. Congress shall make no law. The Bill of Rights, when it was first passed, only limited the powers of the federal government. When you get to the 14th amendment now, suddenly the powers of the states are being limited and the power of the federal government over the states is being exalted. In other words, these amendments represented a major shift in the federal system that we live under. No state can deny a person the equal protection of the law. So you go from Congress shall make no law to Congress shall have the power to oversee the states.
- [33:25]
Martin DeCaro
I'm glad you brought up the recent cases that came before the Supreme Court. I'm not an attorney. However, I learned from listening to those cases, both the attorneys and the Supreme Court justices, that they will do whatever they want with the history, that they're not serious about the history. They will cherry pick the history. That includes Clarence Thomas, by the way, you might be his favorite historian. He mentions you quite a bit there. So if and when this birthright citizenship case makes it to the court, I'm sure I'll hear a lawyer or a justice saying that the word all, the very first word in section one, doesn't mean all, of course, with the exceptions that we discussed. You know, I just want to make a point here because you brought up Dred Scott. I'm glad you did, because I think what I hear in Trump's executive order is Taney, Chief Justice Taney. I have Kate Mazur's book here. Until justice be Done, she cites the Dred Scott case. On page 259. She cites Taney. They, meaning black people, 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 insecure such to citizens of the United States. You hear that today?
- [34:38]
Historian
You definitely do. The voice of Chief Justice Taney can definitely be heard in our political debates right now. Also, President Andrew Johnson, who succeeded Lincoln after Lincoln's assassination and believed, as Taney did, that black people should not be citizens and vetoed the civil rights bill of 1866, only to see it passed over his veto by congress. But, yeah, these are elements of American history. It's not all. There, of course, are other trends or passages in American history which are much more egalitarian, which are much more inclusive. But we have to recognize, and it's easy to see right now that there have always been people who think there's too much democracy in this country. There's too much openness. We don't want the wrong kind of immigrants. We don't want people who don't have a certain religious heritage or things like that. So, you know, this is a battle that has gone on through our history. Who is entitled to be an American?
- [35:41]
Martin DeCaro
The 14th amendment, birthright citizenship wasn't just an invention by the republican party in the middle of the 19th century. In fact, the initial language that they were planning to debate or propose didn't include birthright citizenship, because it was a given in the common law. In the American experience, if you were born here, you were a citizen. And these arguments had been made for a long time. I'll just bring up something that dred Scott's attorney argued. Montgomery Blair. He emphasized to the court. Of course, Taney did not listen to him. He reminded the court that the Second Continental Congress of 1775 had rejected South Carolinians attempt to add the word white to the clause in the articles of confederation that granted free inhabitants of the states the privileges and immunities of the several states. Again, I'm citing Kate Maeser's work here. In 1854, a learned petition from John Mercer Langston on behalf of 25,000 half freemen of Ohio assembled a trove of evidence stressing the American tradition of birthright citizenship. The idea that a free person born in a given jurisdiction was a citizen there. I can go on and on here. I won't belabor the point.
- [36:55]
Historian
Well, that's all correct. It was a little more ambiguous before the civil war because states could determine who was a citizen in that state. The supreme court said black people can't be citizens, But Massachusetts said, yes, they can. And black people in Massachusetts are citizens of Massachusetts. They said South Carolina, for example, had a significant free black population, but the free blacks were not citizens of South Carolina in the eye of the law. So citizenship varied throughout the country. You could be a citizen in one state and you move to another state, and suddenly you're not a citizen anymore. That's why the civil Rights act of 1868 was so important. It was the first time a law was passed declaring anyone born in the United States, a citizen. Then two years later, the 14th Amendment would put that into the Constitution. One of the reasons they didn't debate this that much when the 14th Amendment was being considered in Congress was that they'd already debated it over the Civil Rights act and some members of Congress, well, what are we going through this again? We have already determined that anyone born in this country is a citizen. That's what it says in the Civil Rights act, which is a law of Congress. But of course, a law can be repealed by the next Congress. And so they wanted to put it into the Constitution, where it couldn't just be abrogated. And they certainly didn't believe that a president had a right to abrogate a portion of the Constitution, which is what President Trump claims to be able to do.
- [38:28]
Martin DeCaro
As Carlos Lozado pointed out in the New York Times, by the way, he interviewed you for that or quoted your book in that article. He said, the whole point here is to just weaken the concept, challenge it, weaken it, belittle the concept. In 1862, the Attorney General under Abraham Lincoln Bates was asked for opinions on birthright citizenship. What was significant about what Attorney General Bates said?
- [38:51]
Historian
Bates just said, hey, the Supreme Court is wrong. We don't abide by what the Supreme Court said in Dred Scott because they're just wrong. Historically, and black people have been citizens of the United States here. It's funny, because the issue that Bates was talking about was what seems like a rather small issue. It was whether people from New York State had a right to gather oysters in a New Jersey harbor. Or maybe it was the other way around. It was about the right to gather oysters in another state. The laws had given the right to gather oysters to citizens of one of the states. Bates said, no, you can't do that. Everybody is a citizen here who's born in the country. You can't just exclude them. Now, it actually turned out that they still couldn't get their oysters because the right to gather an oyster was not a major right of American citizenship. According to Bates, the Attorney General rejected the Dred Scott Principle in 1862, and President Lincoln, before he was president, had rejected dred Scott in 1857 when it was issued. So certainly in the Republican Party, which was now the dominant party, Taney's decision was not respected by very many people.
- [40:08]
Martin DeCaro
Bates pointed to the fact that the Constitution did not exclude explicitly people of African descent from citizenship. So therefore they are citizens. You know, you can take that absence of the language and say, look, it was never intended for them. But you also, as Bates did, turn that around. I want to bring up a case that came up in 1898, but I'd be remiss if I didn't mention another conflict that pertained to this issue of citizenship privileges and immunities. A long running conflict in the antebellum period. And that was the black sailors. The black sailors who would leave a port in the north, they'd go down to New Orleans or North Carolina. And this erupted over and over again, was in the courts. And no one could get a court to recognize, recognize federal or national citizenship. So birthright citizenship is finally tested in 1898. It took a while, 30 years for someone to say, this person born in the country is not a citizen. This was the Wong Kim Ark case. A Chinese person, Wong Kim Ark, who was born in the US Left the United States as a young man, went to China, tried to get back into the country. I'm doing a long story short here, tried to get back into the country. The government said, sorry, you can't come here. How important was this case?
- [41:24]
Historian
Well, it was very important because at that time, Chinese people were excluded from immigrating from China. The Chinese exclusion acts had been passed. People from Asia could not become naturalized citizens. A Chinese immigrant could not become a citizen, but he was born in the United States, so he was not an immigrant. And it was important because the court explicitly said, here is a Chinese guy who can't become a citizen by naturalization, but he's already a citizen because he was born in the United States. So that was a sort of definitive statement about the first section of the 14th Amendment.
- [42:02]
Martin DeCaro
I did mention an article at the top of this episode about the Wong Kim Ark case. I will make sure to share that in my weekly newsletter. You can sign up free@historyasithappens.com on the next episode of History as it Happens. What happened to worker solidarity in this country? Who were the wobblies? That's next with Michael Kazin as we report history as it Happens. New episodes every Tuesday and Friday. My newsletter every Friday day.