Are U.S.-Born Blacks Americans? A Citizenship Question from 1866 Returns

The president’s attacks on four dark-skinned congresswomen rekindles debates in the Senate in 1866. Radical Republicans (like progressive Democrats) wanted full civil rights for blacks. This was trickier than you might imagine.

Democrats (similar to the GOP today) had two counter-strategies. 

First, they thought that this matter should be decided by voters, not Congress (in most states in 1866, only whites had the right to vote). 

Second, Democrats used the fallback position of conceding that slavery was abolished but no further legislation was justified after the Civil War. This would leave the status of freed blacks better than property (which the Supreme Court declared they were a decade earlier in Dred Scott) but in a legal vacuum that would reduce them to serfs.

The Radical Republicans devised a clever counter-move. Avoid this discussion. Instead, pass three constitutional amendments: 13^th (abolish slavery); 14^th (creates birthright citizenship); and 15^th (allows the right to vote regardless of race or color).

Now come back to birthright citizenship: “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.”

Radical Republicans said that all slaves born in the U.S. were made citizens by passage of this amendment. (The African slave trade to the U.S. was abolished by federal law in 1808, with a large slave population already in the U.S.)

In 2019, white nationalist policy makers and lawyers refuse to concede that this is a settled question. They say the phrase “subject to the jurisdiction thereof” means that each state must vote on whether someone born or naturalized in the U.S. is a citizen.

They are completely wrong. Congress used this phrase to exclude Indians as citizens because they were born in the U.S. and were members of sovereign tribes (plus, Congress had no stomach to make Indians U.S. citizens in 1866).

Back to the congresswomen, with a focus on Ilahn Omar and Ayanna Pressley. Rep. Omar is a naturalized citizen. But according to the theory of "jurisdiction thereof," Mississippi and Alabama might vote to limit naturalization by excluding people who were born in Somalia and later naturalized.

Not implausible. Examples: Deny Somalian-Americans a license or voter registration or access to public schools.

What about Rep. Ayanna Pressley? She was born in the U.S. There is no question about her citizenship, right?

Depending how far the current tweeting combines racism and citizenship, white nationalist politicians can return to the argument that was settled in 1866 by saying (for example): “We, the people of Alabama, did not ever consent to the citizenship of blacks.”

If this sounds fanciful, read Citizenship without Consent (1985), authored by two Yale professors (one of whom recently said that President Obama should be impeached for his DACA policy).

Radical Republicans understood that many American politicians equally despised blacks and dark-skinned immigrants. That is why they carefully used the words “all persons born in the United States”— not “all white persons,” and not “all persons born to U.S. citizens.”

If history is any guide, we should not assume that all U.S. born blacks always will be regarded everywhere in the U.S. as American citizens.