[September 17th 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 14th
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 14th 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 19th century and well into the 20th.
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 21st 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?
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