Birthright citizenship and the attack on democracy: 'If you know the history, you know what they're trying to do'

The idea that the United States is fundamentally distinct from, and indeed superior to, every other country in the world has been a core, if not blasphemous, tenet of American conservatism. God's chosen people reside not in the Old Testament but can be found in present-day North America, buying guns, big trucks and unregulated supplements to treat their unvaccinated children.

Say one's not an obnoxious ultra-nationalist, though, and that one's view of life on this planet differs from that of a patriotic toddler. The U.S. is a country like any other, then: there are good things about it — this nation of 350 million people — and there are bad things.

But accepting that the U.S. is a flawed country, with no divine right to rule the world, there is at least one thing that does make it different than most other places: birthright citizenship. Under the 14th Amendment, ratified after the Civil War, anyone born on U.S. soil — excepting the children of foreign diplomats and soldiers — is entitled to be a full legal member of the American polity.

That's not how it is in most other nations, Prof. Anna O. Law, the Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College, explains in her forthcoming book, "Migration and Origins of American Citizenship." This is less a product of American superiority than a settler-colony needing to attract immigrants and later being forced to correct the founding injustice of slavery, which resulted in denying citizenship and its legal protections to those of African descent.

Whatever its origins, birthright citizenship does set the U.S. apart. And that angers many who claim the country is "exceptional," who would rather that America mimic the blood-and-soil nationalism of last-century Europe than extend the privileges of freedom and liberty to people of color.

In an interview with The Redoubt, Prof. Law discussed the origins of birthright citizenship, its opponents and the historical connection to slavery and genocide.

One of the reasons I was interested in birthright citizenship, before even the Supreme Court decided to take up the case the other day, was that I moved to Austria, and I got to thinking about: What if I started a family here? Would my children be Austrian citizens, right? And, you know what, they would not be Austrian citizens. There'd be a pathway. But that was kind of like a realization, and a naive, perhaps American one.

"That's how it works everywhere, right?"

Right, but other countries do not have this thing, which is really kind of an amazing anomaly. And it's kind of disappointing, because I thought I might have little Austrian kids, but, you know, I'd have to work a little bit harder to do that. So how did America come to have this interesting, anomalous way of granting citizenship just based on birth? And would you say that it is a defining characteristic of what makes America?

I think it is a defining characteristic. The birthright citizenship provision in the United States comes about because of the very complex racial history of the US. So we hear people say, "oh, you know, the borders were always open." Yes, but the borders were also open to enslaved importation, and ... we knew, while slavery was legal, that people who are enslaved have no rights. Okay, so what's the citizenship status of free black people? Because before the 14th Amendment, that wasn't clear.

States in the northeast, some of them treated free black people as state citizens, like Massachusetts and Connecticut, and free black men were allowed to vote and be on juries. But other free states and other slave states did not recognize free black people as state citizens. And even for the free black people who are citizens, what's the relationship of the hierarchy between federal citizenship and state citizenship? Does one trump the other? Like, what is the relationship between the two? So because none of that was specified or clear before the 14th Amendment, all kinds of discrimination could be visited on free black people.

I was under the impression that birthright citizenship had some sort of common law basis; that there was a tradition, predating the 14th Amendment. Am I mistaken in thinking that? How did that work out before the 14th Amendment, specifically for the children of freeborn blacks?

The naturalization provision, that you don't have to be born here and there's a pathway for you to become on the same plane as a citizen, a natural born citizen, born in the U.S. — that is common law based. But the birthright citizenship clause is also necessary, because the U.S. passed the Naturalization Act of 1790, which is limited to naturalizing people who are white. Even if you are a free black person or an Asian person or any other color person, you can't naturalize. So because of those multiple pathways being cut off for free black people, that's why the amendment became necessary.

Common law tradition does contribute to birthright citizenship for people of European descent.  But you cannot understand the reason why the US has it without cognizance of the long history of slavery, the Civil War and Reconstruction amendments. Slavery and securing Black freedom from rollback was the main reason, not this modern-day concern about temporary or “illegal” aliens. The U.S. immigration system today bears no resemblance to the one back then. Griping about “illegal aliens” and children of temporary visitors is taking modern-day categories of U.S. immigration law and political priorities and projecting them backwards in time.

Birthright citizenship was trying to correct an egregious injustice as a product of enslavement, right? It was not our founding fathers trying to differentiate us from the European nations with a more progressive, liberal form of citizenship.

Nope.

It was more: there are all these people in this gray area, and we need to fix that.

So naturalization is — we think of it as, "oh, citizenship, what a lofty idol that we bestowed." I mean, the Naturalization Act of 1790, you could say, is breathtaking in its generosity. By saying "all free white persons," I mean, you're giving citizenship to people regardless of social class, regardless of religion, regardless of ethnicity, not race, but ethnicity, right? So it's very widely encompassing. Why do we have that? Oh, that's purely instrumental. It's not some lofty goal; yes, there's some revolutionary ideals of, "we want to break from England and the 18th century idea of 'once a subject, always a subject."

But fast and easy naturalization was a recruitment tool in the colonies and in the early republic to tell non-English people, "Hey, please come here. Please come here as a volunteer migrant, and we're going to make naturalization very fast and easy for you, and put you on the same legal plane as a British citizen." And so once you got that, you can own land and you can bequeath land to your heirs. Because why would people come all the way from Europe if they can't do that, right? So naturalization was a huge incentive and recruitment tool for voluntary migration.

And these children of European immigrants, were they also in this gray area? Like if they were born before the recent immigrant parent had gone through the naturalization process. Or was there a track for them to get citizenship? Was it: as long as you were applying for U.S. citizenship, your children would be granted it too? How did that work?

Before the Reconstruction amendments, your access to rights, your access to equal treatment, your access to the social and racial hierarchy did not derive from your legal citizenship status. Because citizenship, yes, it's this mushy concept, but how you were treated and your access to rights was more based on your race, your social class, your gender and the networks that you belonged to.

It seems like now, in modern days, we've gone more towards this dichotomy of citizen or non-citizen — and the non-citizen does not get any of the rights guaranteed by the Constitution. I'm not trying to romanticize the 19th century that you're talking about; I realize it was based on classism and racism. But as you're saying, I guess rights weren't based solely on, "Did you get the citizenship document or not?" You were kind of treated — assuming you were, let's just say, a middle-class white person from Europe, your treatment under the law was based on your being a white European.

Your treatment under the law and your treatment in society, right? So before the Reconstruction amendments, there's no concept of ... equal treatment under the law. You had no presumption of equal treatment. Discrimination was rampant. The 19th century conception of rights was, "Okay. Our highest priority in law" — the legal culture of the time — "is we prioritize the 'will of the people' and the 'public good.'" Okay? The public good is very disparately defined, as you know, the mainstream status quo. So if you are a person of color, enslaved or free, if you're a single woman — God forbid, a single woman who's pregnant — I mean, you have no presumption of good treatment or equal treatment, or any concept of individual rights.

I interviewed another historian a few months back, Manisha Sinha, who argues the Reconstruction Era is like the second American Revolution. Do you kind of view it that same way? Like the 14th Amendment is trying to correct this historical injustice, or at least a legal loophole that left a lot of people with questionable citizenship status. But it was also obviously part of a broader attempt to ensure equal treatment under the law that, as you were saying before, was ad hoc and very much based on your color and economic status.

I do consider it, like Eric Foner, who calls it a second founding, if you may. But it's an incomplete one, right? We know what happens with the story of Reconstruction, and it just doesn't quite take until the Civil Rights Act of 1965, Voting Rights Act, and then now we're backsliding again.

Could you put this in historical context, the current administration's hatred of the 14th Amendment and birthright citizenship? Obviously, there was the Wong Kim Ark case, which was like 30 years after it passed, which solidified it as applying to the children of immigrants. But the fact that there had to be a case like that shows there was opposition to that, even then. So how do you place the current moment in history?

Citizenship, or what Hannah Arendt in the 20th century, described as "the right to have rights," has always been political, and it's always been — not racial in the U.S, it's been racist in the U.S. So while the 14th Amendment birthright citizenship clause was being debated, the most hated group were the Chinese immigrants that were arriving in significant numbers since the 1850s on the West Coast. So the fear was, "Oh my God, you can't have birthright citizenship. Are you telling me those people and their children will be citizens?"

And so, because the Naturalization Act of 1790 is still in effect, the Chinese immigrants themselves cannot naturalize under U.S. immigration law. But what about their children who are born here? And there was a debate about it. And you know, someone explicitly asked, "Okay, do you mean children born to those hated Chinese people would be citizens?" And the Congress said "yes." And part of the consideration was, "If we don't do that, we've got undocumented European people. What, their kids are going to be stateless? We cannot have that, right?"

So the current moment is, once again, this backlash against a very broad conceptualization, a very color blind conceptualization, of American citizenship, and so that's the continuity. The problem with political change is that no change is permanent if the losers keep fighting it and won't accept it. And so that's what's going on now.

I know that the Trump administration and the xenophobic element of the Republican Party, which is clearly dominant, has long despised the idea that undocumented immigrant children could become citizens. But are you surprised at all that it has become such a central tenet of the MAGA movement and the Republican Party today? During the first Bush administration, I didn't hear much about birthright citizenship outside of the far-right fringe, the Tom Tancredo element of the party, and now it's front and center.

It was inevitable it was going to go there. I think, beginning with questioning Obama's fitness to be president of the United States, right, there's always been this undercurrent of people who reject the idea of a multi-racial democracy. There's always been a baseline of those people. Trump did not invent racism, but he normalized it — made it respectable and made it mainstream in the Republican Party.

Why are you so interested in this topic? And why did you think it was important to go through the history? I guess this is obvious now, but you didn't necessarily know when you were going to start writing this book that the Supreme Court would take up birthright citizenship in Trump's second term. So what led you to give it the book-length treatment?

So the book started 16 years ago. And people keep telling me, right now, as the book is about to come out in March, they're like, "Oh my God, you wrote such a timely book." I say, "You know what? I'm horrified." I started this book 16 years ago. I thought I wrote a historical book. [I] didn't think the thing would be salient in politics, now.

It almost sounds like an Irish curse, "may your book be salient."

I know: It's like when you study slavery, Native American dispossession, and Chinese exclusion, you don't want to be salient in the current moment. But what led me to that writing that book was a fairly simple question: Where's the dividing line between national and local authority on migration? Where is it located? It turned out that took me 16 years to answer because, depending on which period of U.S. history you're asking, it's different, and a large part of the story is because slavery existed.

The slave states were not going to allow the federal government to control international or interstate migration. They are afraid: "No, no, no, we can't have the federal government in charge of immigration, they're going to deport all our enslaved people. We have to control it, and we also have to be able to have control over excluding free black people from coming into our jurisdiction." The largest, most evident effect of slavery on voluntary migration is that it delays the transition to the federal government for over 100 years. It goes from the colonial period to 1888, where the states strongly maintained almost exclusive control over international and interstate migration.

Now the northeast, there's a different set of concerns. New York, Massachusetts, they're getting European immigrants. They don't have enslaved people, but they're afraid of people who are likely to become a public charge. There are no government safety-net programs until the 1930s so if you have poor, sick, disabled people, they are the burden and the responsibility of the local communities. So New York and Massachusetts and all the Northeastern seaboard states are taxing people likely to become a public charge. And they don't want the federal government in charge of that, because they feel like the federal government is too far away and they don't know what they're doing.

How often was the this public-charge exclusion enforced? There's still plenty of people coming over who could arguably have been excluded under such clauses. Is it right to think that it wasn't really enforced to the extent that it might have possibly been?

It's not hugely enforced, if you mean, like, are people actually sent back to Europe or sent to a different state where they came from. It's not enforced in that it's not rejecting people. But remember, it's a huge revenue generator for New York state. Instead of excluding people and deporting them — Massachusetts was deporting more people; Massachusetts was actually sending people back — but New York was saying, "Okay, well, you know, this person seems to be they could be a public charge, so the shipmaster has to pay a bond or a head tax." It was just a source of revenue for the state. And so they, they do let people in, but they're collecting money. So it depends on what you mean by enforcement. I mean, they're enforcing it by collecting head taxes.

Who was paying the head tax? The shipping company that then has to charge people higher fees for getting on a boat?

Yes, exactly. The shipmaster is paying the taxes. It's not, you know, the individual immigrant who they say, "Oh, no, you're a public charge." It's the shipmaster, which leads the shipping company to raise their fees on everybody, right? And that leads the shipping company to do their own screening pre-departure because they don't want to pay these taxes. And the shipping companies repeatedly go to the federal courts saying, "You got to be kidding me, man, this is a violation of interstate and international commerce, which should be under the control of the U.S. Congress, not the states."

And they keep losing, until the Civil War decouples slavery and voluntary migration, and then finally, the courts say, "You know what? Yeah, okay, yeah, that's that's a violation of international commerce." It was before too, but it wasn't politically viable for the court to rule that way before the Civil War.

How were immigrants determined to be public charges? Because I imagine it's not like today where they can go through your bank records very easily, or, like, you know, require you to present your asset sheet. How was a random person coming off a boat from Ireland assessed whether to be a public charge or not?

So you're right: Today, you have to submit bank statements, affidavits, lists of your assets, to show how much money you have or do not have. Back then, the record keeping is not that extensive. There's a person from the state inspecting each person getting off the boats; they're doing an eyeball sort of assessment. Okay, anybody who's not in steerage, like, you know, first class, they're not even going to screen them: these are rich people.

Then they're looking for communicable diseases. They're looking for mental illness. Of course, the understanding of mental illness and disability is not that sophisticated at that point, so they're basically eyeballing it, and classes of people would draw higher suspicion. So during the Irish Potato Famine, any Irish person in steerage is going to be presumed to be a pauper, and any woman by herself, without family members, without a spouse or without a family, family members coming to get you to pick you up at the docks is suspicious. Pregnant women traveling alone? Holy shit, I mean, that would raise red flags [of] public charge. Anyone who was physically and mentally disabled, that the inspectors could see, would be public charge.

So it's kind of just like a club bouncer approach to immigration. Quick snap judgments.

I know it when I see it.

So we talked about enslave peoples, and we've talked about European immigrants of various economic statuses, and how our immigration laws were formed based on addressing the problems that people perceive with these different groups. What we haven't talked about, though, is indigenous peoples. Reading your work, the native peoples who are already here — I was surprised that there was a connection to our immigration policy. What is that connection?

There are a bunch of Supreme Court cases where there there's a line of doctrine called "plenary power doctrine," which gives huge liberty to Congress and the elected branches to regulate immigrants and Native Americans. And the plenary power doctrine at the end of the 19th century arises at the same time in federal Indian law and immigration law, and then the Chinese. How we herded Indians onto reservations, and how the U.S. government can control who goes on to reservations, is turned around and used a year later to justify Chinese exclusion.

So these groups that seem to us today have nothing to do with each other, the people of those times thought of their mobility and citizenship as relational. So the connection of why Native Americans are in a book about voluntary migration is, one, they were already here, and two, we need to think about immigration policy as not just restrictionist, but [about] incentives. So in the colonial period, the colonial governments, each colony is giving away tracts of land, 50 acres, 100 acres, for every voluntary migrant that comes, because you're trying to get people to come and to populate the land. So if you're a rich person, and you bring your wife, and you bring two servants, and you bring an enslaved person, for each person that you pay for to come, you get 50 acres, or 100 acres. That land was contested. Some of that land Native Americans claimed, and they had lived there for generations, but the land was being used as an incentive for voluntary migrants.

Fast forward to the 19th century. There are federal land laws that are trying to get people on the East Coast, white people on the East Coast, and Europeans who haven't even come yet, to go to the middle part of the country. And so there are homestead laws, right? "Okay, you move out there and make the land productive; you know, start your farm, and we'll give you however many acres." That was Native American land. Some of it had been obtained by treaty with the U.S., some of it obtained by force, and treaties that were forced on Native people. And so the relational aspect is the U.S. government saw it as zero sum. They could not see a republic where Native American people, in sovereign native nations, lived alongside white settler communities.

They went with a logic of we need to buy the land or push them out — physically remove people. In the 1830s, that logic culminates in the U.S. government financing and carrying out native deportation. That's 80,000 people. Everyone knows the Cherokee Trail of Tears, and that's 16,000 people, which is a huge number of people as is. But in the 1830s it was 80,000 people, with huge casualties along the way. It was the southeastern states, Mississippi, Oklahoma; they were eyeing Cherokee land and native land because they wanted to expand cotton growing and slavery. So the ability of Native Americans in the southeast to remain and stay on their ancestral lands was relational to the white planters who wanted that land and who asked the U.S. government to deport native people; violent deportation.

I use the word "deport" very deliberately. I'm following the lead of Claudio Saunt, who's a native historian. I'm calling it "deportation," and not the euphemistic "removal," because this thing is financed and carried out by the U.S. government. I've heard people say to me at talks, you know, "my family came here legally with nothing, and they had no help from the government, and they made something of themselves." Your family cleared 80,000 native people out of the way, and then [they] gave you land? Your family did all that by yourself? No, the U.S. government is involved.

I think that we need if we're going to tell a full picture of U.S. migration history, we need to not just talk about who came, but also who was there before and why were they forced to leave, and how were they forced to leave.

Undoubtedly, you've encountered well-meaning, progressive, liberal types who have, in their attempts to denounce the Trump administration, claim that we didn't even have federal immigration restrictions until the Chinese Exclusion Act. But we've just talked for a half hour about all these horrific state and local level immigration restrictions and deportations that were carried out internally.

As an academic, I'm sure you're bothered by that, but I'm wondering what the balance is between trying to, like, appeal to a more progressive hope enshrined in American history — that "nation of immigrants"; anyone can come here and make something of themselves — to kind of promote a more progressive Future.

Or should we be more directly honest about how there were never open borders and, in fact, we were always restricting people? I could see myself wanting to avoid that argument on the basis of not wanting to give my conservative family more ammunition to argue for border controls today.

I think I would tell a progressive: the U.S. as a land of opportunity was true for a lot of people. I mean, if you look only at the right of mobility, and the corollary, the right to set roots and stay where you want, the U.S. was very good about that for the majority white population, and that is what led to people building generational wealth. And that's a pretty good model, but we need to extend it to other people.

I mean, what does the borders being "open" even mean when the borders were also open to enslavement, right? So we've got to find a way to make our laws and our citizenship more inclusive so it's not a racialized citizenship. Now, Stephen Miller has said repeatedly that he hates the 14th Amendment. He hates the birthright citizenship clause. I think that's one of the things we as Americans should be the most proud of, because it realizes the promise that America was, that America gave people. It took a while to get there, but we need to uphold that idea of of colorblind, birthright citizenship and, at the same time, need to see that it wasn't always like that. We did eventually get to the right place, but now we're backsliding and rolling back, or they're attempting to roll us back.

So I would draw pride and strength in, "Yes, the U.S. can be and has been, a multi-racial democracy, and we should continue striving to achieve that."

I guess that kind of brings it back to how we began, which is that, yeah, birthright citizenship is not some high-minded principle from America's founding fathers. But the Reconstruction amendments fulfill the promise of the founding, and its loftier rhetoric, or at least attempt to create a more fair, equal republic.

We fought a freaking Civil War to get those amendments. I mean, I don't know why you would want to go back to before that. And the thing I emphasize about the local laws against free black people and their citizenship being unclear, I say: "Okay, look at what happened to people, the kinds of discrimination that were visited on people who were born in this country, who didn't have official legal citizenship. That's what the citizenship restriction and stripping is about." By taking people's legal citizenship away, you can do any manner of discrimination and horrible things to them. We were trying to move away from that. Why are we going back to that now? If you know the history, you know what they're trying to do.

My real, last question: Are you at all hopeful?

Looking at the broad sweep of American history, because my book went from the colonial period to 1860s, I am hopeful. I'm still a political scientist, although I did some very historical research, and my colleagues who have studied authoritarian regimes and countries that have turned in a less democratic direction, say: You know what? There's always a U-turn. They always go back to democracy."

Now, the problem is we are at the bottom of the U and how long a country stays at the U before the rebound is entirely dependent on current politics. Looking at back at U.S. history, abolitionists five years before the Civil War were very grim and said, "Oh my god, we're never going to get rid of slavery." And then five years later, it was gone. They couldn't have known that, right? But they saw it in their lifetime.

But I'm also sanguine. And look, I'm 55 years old. I've told students and young people: "I'm confident the rebound toward democracy is coming. I'm not sure it will happen in my lifetime. I hope it happens in yours."

Contact the author at cdavis@theredoubt.net or follow him on Bluesky.