Birthright Citizenship Existed Before the Fourteenth Amendment

Within the next few weeks, the Supreme Court will rule on the Trump administration’s argument that the Fourteenth Amendment’s opening sentence — “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” — only applied to formerly enslaved persons and their children.

This is self-evidently a spurious claim, but the arguments that countered it, defending the Fourteenth Amendment as a new universal right in 1868, miss some crucial history: free Black people had enjoyed birthright citizenship in much of the United States since its founding. The Fourteenth Amendment’s explicit purpose was to extend the birthright principle into a uniform national citizenship, and the men arguing for it built upon a long tradition in doing so.

Most articles examining today’s challenges to birthright citizenship frame the Fourteenth Amendment as a response to the 1857 Dred Scott v. Sandford decision, in which Chief Justice Roger B. Taney declared that Black persons “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”; further, they “had no rights which the white man was bound to respect.” Only two justices dissented from the opinion. 

Minus the history leading up to Dred Scott, readers may presume that Taney’s opinion reaffirmed existing precedents, reflecting a popular consensus. Not so! His decision sparked outrage precisely because it was radically new, whereas the Fourteenth Amendment’s affirmation that everyone born on the soil was a citizen had precedents stretching back to the Founding. 

The chief justice’s claims had little grounding in American legal doctrine and the English common law upon which American jurists and lawyers relied. All definitions of American citizenship rested on jus soli, the right of the soil (what we call “birthright”), as explained in William Blackstone’s Commentaries on the Laws of England in 1765, the principal text for generations of American lawyers. Blackstone specified that there were only two categories of inhabitants: “The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.” During the Revolution, Congress and the individual states declared that all free British subjects who did not exile themselves were now Americans with little discussion of its implications. That was the original basis of birthright citizenship, but it was left to the states to apply it. 

The devolved federalism of American jurisprudence thus kept open the space to interpret birthright nonracially. From the Revolution to the Civil War, citizenship derived primarily from one’s status in an individual state. Massachusetts, New Hampshire, Vermont, and later Maine always recognized free Black people as citizens and accorded them full political rights, while others like New York and Pennsylvania began on the same plane but later took away voting rights, and some new states like Ohio formally consigned their Black inhabitants to a lower and liminal status. Birthright citizenship was therefore a “states’ rights” issue. Taney’s a priori declaration that there never had been any Black citizens abrogated existing state laws, which those states rejected outright. Vermont and Wisconsin had already “nullified” the Fugitive Slave Act of 1850, which legalized kidnapping Black people in the North, and Maine’s legislature declared Dred Scott “not binding in law or conscience.”

The argument for nonracial citizenship was longstanding and linked the emerging Black political class of the antebellum decades with white leaders in the Federalist, then Whig, and finally Republican parties. Examples abound. In the 1840s and ’50s, it was common knowledge that Thaddeus Stevens refused to sign Pennsylvania’s 1838 constitution because it took the vote from the state’s Black men, against which he had argued with his characteristic vehemence. Another notable instance came in 1837, when former President John Quincy Adams, the South’s nemesis as a congressman from 1831 to 1848, presented his fellow members of the House of Representatives with a petition purporting to come from enslaved Virginians. In response he was “gagged,” the beginning of a long fight over the reception of antislavery petitions. To vindicate himself, Adams published a letter “To the Inhabitants of the Twelfth Congressional District of Massachusetts,” his constituents, in which he unequivocally hailed African Americans, enslaved as well as free, as “countrymen” and fellow citizens. It is worth quoting: 

The sentiment in the bosom of any free American, that one sixth part of its countrymen, are by accident of their birth deprived even of the natural right of prayer [e.g., to petition] is degrading enough to human nature; but that because, in one portion of this Union, the native American becomes, by descent from African ancestry, an outcast of human nature, classed with the brute creation, within the boundaries of the state in which he was born, therefore, it is beneath the dignity of the General Legislative Assembly of a nation, founding its existence upon the natural and inalienable rights of man, to listen to his prayer, or even to receive his petition, is an opinion to which I trust your judgments will never assent, and a sentiment which your hearts will reject with disgust.

Adams was influenced by the arguments of William Jay, a distinguished judge and son of the founder John Jay, himself a noted abolitionist. In 1835, the younger Jay published his Inquiry into the Character and Tendency of the American Colonization and American Anti-Slavery Societies, the first examination by a legal expert of evidence for or against Black citizenship. Jay’s conclusion was unequivocal. If white Americans “admit free negroes to be men, and to be born free in the United States … it is impossible to frame even a plausible argument against their citizenship,” quoting his father in 1785: “I wish to see all unjust and unnecessary discriminations every where abolished, and that the time may soon come, when all our inhabitants, of every color and denomination, shall be free and equal partakers of our political liberty.”

These were not new opinions. They had long been associated with Federalists like the Jays. Another son, Peter Jay, spoke out at the pivotal 1821 New York State Constitutional Convention against Martin Van Buren’s Bucktail Republicans’ push to disfranchise the state’s large Black electorate. He insisted that

these blacks are your constituents as well as men of fairer complexions. They have many of them voted to give you seats here; and yet the unalienable rights of men and the eternal principles of justice are alike to be violated for the sake of disfranchising this class of men, and that without fault, without crime, without imputation against them. It has been always taught here that we should abhor privileged classes as they exist in Europe; but we are about to create, not a privileged class, not an order of nobility, but an order of degradation.

Just a year earlier, a second stage of the “Missouri Crisis” again paralyzed Congress when the new state’s constitution barred all free people of color — a direct attack on the citizenship granted persons of African descent in New England. Representatives like the Rhode Island Federalist, Sen. James Burrill Jr., objected vociferously, pointing out “that we have colored soldiers and sailors, and good ones, too, but under no pretext, whether of duty or any other motive, can they enter Missouri.” He anticipated the Fourteenth Amendment, insisting it was not “difficult to define what constituted a citizen. If a person was not a slave or a foreigner — but born in the United States, and a freeman — going into Missouri, he has the same rights as if born in Missouri.” Then came the constitutional objection, that “Missouri might, with the same right, go still further, and pass laws to exclude citizens born in certain portions or districts of the United States.”

Over time, this forthright commitment to republican equality became a badge of honor, part of some politicians’ reputations. As a leader of the Northern antislavery Whigs and New York’s governor in 1839-1842, William H. Seward was famous for enforcing the rights of his state’s Black citizens, entering into a prolonged confrontation with successive Virginia governors over their attempts to force the extradition of several Black New Yorkers who, as sailors in Virginia ports, had assisted fugitives. Out of office, Seward kept up his correspondence with African American leaders like Dr. James McCune Smith, publicly supporting their efforts to regain full voting rights, and as a senator in 1849-1861, he was their tribune.

Abraham Lincoln himself pointed to the history of Early Republic Black citizenship in a speech soon after the Supreme Court’s ruling, citing Justice Benjamin R. Curtis’ dissenting opinion “that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.” (In fact, free Black men voted in ten of the original thirteen states, only reinforcing Lincoln’s point.) 

The most forthright insistence on nonracial citizenship came from Black men themselves. Often they invoked jus soli, as did the delegates to the “Convention of the Colored Inhabitants of the State of New York,” “for the Purpose of Considering Their Political Condition” in 1840: 

We are Americans. We were born in no foreign clime … We have not been brought up under the influence of other, strange, aristocratic, and uncongenial political relations. In this respect, we profess to be American and republican … We merely put forth our appeal for a republican birthright.

In states where they could vote, including North Carolina and Tennessee into the 1830s, Black Americans used their ballots as leverage and protection. In states where they had been excluded, notably New York and Ohio (by the 1850s, two of the three most populous), they engaged in decades-long, ultimately successful, campaigns to claim or reclaim the franchise. In Ohio, African Americans and their allies took full advantage of the equation of whiteness with citizenship, aided by the Ohio’s Supreme Court’s rulings that any man claiming majority “white” blood was white and could therefore vote. Whig and later Republican officials exploited this ambiguity. As one of Ohio’s best-known Black leaders, John Mercer Langston (elected clerk of a town near Oberlin in 1855) declared, “anybody that will take the responsibility of swearing that he is more than half-white, shall vote. We do not care how black he is.”

It should not surprise us that today’s MAGA Republicans are again challenging the birthright principle. That is their natural inheritance, as demagogic racial populists in the mode of Andrew Jackson. With this strand in U.S. politics surfacing yet again, we should remember that notions of racial or ethnic caste have repulsed genuine democrats since the Founding, whatever their party label.