September 20, 2019: Constitution Week: Birthright Citizenship

[September 17^th is Constitution Day, so to celebrate this week I’ll AmericanStudy a handful of contexts for that foundational American document. Leading up to a special weekend post on threats to the Constitution in 2019!]

On how a post-Civil War debate reveals complex, crucial realities of public scholarship.

As I’ll discuss a bit more in that weekend post, one of the many threats currently posed to the Constitution by the Trump Administration is the repeated challenge—at least in Trump’s statements and Tweets, but those have basically become the principal mechanism of policy-making in Motherfucking 2019 America (its new official name)—to the 14^th Amendment’s guarantee of birthright citizenship. In response, I’ve seen a number of journalists, pundits, and public scholars make the case that this threatened change represents yet another example of Trump seeking to undermine and destroy fundamental American norms and values, another step in his remaking of America into a nation and community that would be unrecognizable to not only the Founders, but just about every subsequent generation of Americans. Obviously (I imagine) I agree with that overall narrative and argument, but when it comes to birthright citizenship specifically, there’s a problem: that concept was deeply contested and fragile, both in the era of its creation (nearly 100 years after the Constitution was written) and for many decades thereafter.

As historian Martha Jones traces in her magisterial book Birthright Citizens: A History of Race and Rights in Antebellum America (2018), the concept of birthright citizenship was present pre-Civil War, but often discussed through its overt denial to enslaved African Americans (as reaffirmed in the Supreme Court’s Dred Scott decision). After the war and abolition, a central goal of Reconstruction was to extend such rights to African Americans, and the 14^th Amendment represented a vital first step, one complemented and cemented by the Naturalization Act of 1870. Yet the latter law only extended birthright citizenship, and indeed the possibility of gaining citizenship at all, to “aliens of African nativity and to persons of African descent,” and that phrasing was entirely purposeful: although Senator Charles Sumner had argued for extending citizenship to Asian Americans, Congress rejected that argument; similarly, Native Americans likewise remained ineligible for citizenship until the 1924 Indian Citizenship Act. Chinese Americans and their allies would continue fighting for birthright citizenship, a battle that culminated successfully in the Supreme Court’s 1898 Wong Kim Ark decision. But “fighting” and “battle” are key words in that sentence—just as it had been pre-Civil War, birthright citizenship remained a contested and evolving concept throughout the late 19^th century and well into the 20^th.

This is one of the many difficulties of producing public scholarship in an age when simplistic, stupid mythologies and garbage rule so much of our discourse. To note that birthright citizenship is not just a Constitutional given—that it was only added to the Constitution 150 years ago, and in a manner that still overtly denied it as a right to many Americans—might seem to grant legitimacy to Trump’s attempts to challenge and undermine it in the 21^st century. Those historical facts are accurate, and so must be highlighted whatever the effects. But I would also argue precisely the opposite about acknowledging and engaging these histories of birthright citizenship (as I did in this We’re History piece): that doing so helps us understand just how fragile the concept has been and remains, just how hard the forces of inclusion have fought to extend it to all Americans, and why we must work just as hard in 2019 to maintain and even extend those hard-fought rights. That’s the true spirit of the Constitution and its evolution, as I hope this whole week has made clear.

Special post this weekend,

Ben

PS. What do you think?