Why Didn't They Tell You?

Why didn’t they tell you why the U. S. has birthright citizenship?

There has been a lot of discussion of birthright citizenship of late. The issue is being argued before the U. S. Supreme Court as I write these words. A news anchor/commentator recently noted that no other country has birthright citizenship and asked the question, “Why does the United States have it?” It does seem odd that the U. S. has birthright citizenship when none of the Europeans countries have it. But why we have it is not a mystery. The answer is that it was put in the 14^th Amendment to the U. S. Constitution as part of the effort to assure equal rights for the recently freed slaves and free people of color. To fully understand why Congress felt a need to allow birthright citizenship for ex-slaves, we need to examine the reason(s) for the 13^th, 14^th, and 15^th amendments, all addressing the plight of Americans of African descent in the aftermath of the end of the U. S. Civil War.

The 13^th Amendment to the U. S. Constitution abolished slavery once and for all. The Emancipation Proclamation, a good thing, was a war measure that proclaimed slaves free in the states of rebellion. The problem was that it did not abolish slavery in the United States of America. In the slave states of Maryland, Delaware, Kentucky, Missouri, and West Virginia, which did not secede from the Union, one could legally enslave other people, even after the issuance of the Emancipation Proclamation. And in the states that it applied to, I am sure that there would have been challenges to the legality of the Proclamation which was essentially an executive order issued by President Lincoln. Apologists and supporters of slavery would have questioned the authority of the president to take such action. I am also sure that President Lincoln, being a lawyer, was aware of that possibility. That possibility was undoubtedly why he spent so much political capital to get the 13^th Amendment passed by both houses of Congress. When he was assassinated all that was left to be done was the ratification by three-fourths of the states, which was achieved on December 6, 1865, just short of 8 months after the war was over (April 9, 1865) and after Lincoln was assassinated (April 14, 1865).

Abolishing slavery was only the beginning of the work of assuring the rights of the ex-slaves. Led by Charles Sumner, Republican Senator from Massachusetts, the two items that had to loom large in the minds of those fighting for the rights of ex-slaves were citizenship and the right to vote. Meanwhile the ex-Confederates were quickly putting in place things that essentially kept the ex-slaves still enslaved, such as the infamous Black Codes. All this was helped on by the then President Andrew Johnson whose sympathy was more for the ex-Confederates than the ex-slaves.

A few years before the Civil War started (1857), the U. S. Supreme Court issued its infamous Dread Scott decision. The majority opinion was written by Chief Justice Roger B. Taney who opined that people of African descent could not be citizens of the United States because they were not part of the people and had no role in forming the country and the Constitution. There were two dissenting opinions, one by Justice Benjamin Curtis and the other by Justice John McLean. Justice Curtis in a brilliant dissent obliterated the argument put forth by the majority opinion that Americans of African origin were not part of “We the People”, and Justice McLean argued that an enslaved person born in the country became a citizen upon being freed. This latter position was codified in the 14^th Amendment.  But until the 14th Amendment was ratified, the opinion of the majority held sway and was the last word on the matter. In the absence of the 14^th Amendment, those opposing citizenship and the right to vote for Black People could have gone right back to the Dred Scott opinion. Led by Charles Sumner, the Republicans had a large enough majority to push the 14^th and 15^th Amendments through the Congress and to get them ratified by the required number of states.

The 14^th Amendment was ratified on July 9, 1868 and the 15^th Amendment on February 3, 1870.

Section 1 of the 14^th Amendment states that “All persons born or naturalized in the United States …are citizens of the United States … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United State; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It seems to me that the whole paragraph is addressing issues that Black People in the South were up against in face of the ex-Confederates’ push to re-institute de facto slavery. Except for a few, all of the ex-slaves were born in the United States. Therefore, the citizenship issue for Black People is taken care of by saying that you are a citizen if you were born here. Citizenship and the right to vote are coupled because if you are not a citizen, you cannot vote. In other words, the citizenship issue had to be solved before the franchise issue could be settled.

It is understood that provisions meant to address the conditions of ex-slaves and people of color may have broader applicability.

The 15^th Amendment addresses the right of citizens to vote. Section 1 states that “The right of citizens [my italics] of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Please notice that the 15^th Amendment conferred the right to vote on citizens. In the former slave states, black citizens were being denied the right to vote even though the 14^th Amendment had already been passed, granting citizenship. How could they speak to the franchise right if citizenship had not been granted? The 14^th Amendment to the U. S. Constitution nullified Taney’s opinion in the Dred Scott case and cleared the way for citizens of color and citizens who had previously been slaves to vote.

In a case in 1898, the U. S. Supreme Court upheld birthright citizenship for Wong Kim Ark who was born in the United States of Chinese parents who were not citizens, based on the 14^th Amendment. On the face of it, it seems like a slam dunk for birthright citizenship today. Nonetheless, how the Supreme Court will rule this time nobody knows.