Republican presidential frontrunner Donald Trump’s proposed immigration policy has a very ugly forerunner.
On Sunday, Trump released a series of immigration proposals, one of which seeks to restore a similar vision of citizenship to the one embraced by the Supreme Court in its infamous Dred Scott decision. Trump calls for the United States to “[e]nd birthright citizenship,” which he labels “the biggest magnet for illegal immigration.” In Trump’s vision, the children of a disfavored class will once again carry tainted blood that disqualifies them from citizenship, even if his new target is the children of undocumented immigrants and not the descendants of men and women brought to this country in chains.
Black men and women “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect,” according to the most infamous decision ever handed down by the Supreme Court of the United States. The core of the Court’s reasoning in Dred Scott was the notion that citizenship was a kind of hereditary inheritance, passed down from the kind of people “who were citizens of the several States when the Constitution was adopted” to their children. Black slaves and their descendants were, thus, disqualified by their own blood from enjoying the rights of citizenship.
Birthright citizenship, the principle that infants born on U.S. soil automatically become citizens regardless of ancestry, was written into the Constitution as an explicit repudiation of Dred Scott. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” the Fourteenth Amendment begins, “are citizens of the United States and of the state wherein they reside.”
(The phrase “subject to the jurisdiction thereof” excludes only a limited class of individuals who are not subject to U.S. law, such as the children of ambassadors. Children of undocumented immigrants remain bound by our laws so long as they reside in the United States, and thus are citizens if they are born here.)
Although the primary purpose of this citizenship provision in the Fourteenth Amendment was to overrule Dred Scott and grant full citizenship to former slaves and their descendants, early opponents of birthright citizenship also rooted many of their objections in nativist concerns.
Prior to the ratification of the Fourteenth Amendment, Congress enacted the Civil Rights Act of 1866, which contained many of the same protections later enshrined in the amendment — including a birthright citizenship provision. As Elizabeth Wydra explains, some members of Congress expressed concerns that this provision would extend citizenship to immigrant populations they viewed as undesirable, including “the Chinese population in California and the West, and the Gypsy or Roma communities in eastern states such as Pennsylvania.” Pennsylvania Sen. Edgar Cowan, for example, expressed concern that the Civil Rights Act would “have the effect of naturalizing the children of the Chinese and Gypsies born in this country.” Meanwhile, the law’s supporters explicitly rejected these nativist concerns. As Sen. Lyman Trumbull explained, “the child of an Asiatic is just as much a citizen as the child of a European.”
Andrew Johnson, the accidental president transformed into the nation’s chief executive by the assassination of President Abraham Lincoln, is widely remembered for his efforts to maintain white supremacy against African Americans. Yet Johnson’s racism was not limited to freedmen. In a message to Congress explaining his decision to veto the Civil Rights Act of 1866, Johnson complained that the provision providing that “‘all persons born in the United States, and not subject to any foreign power . . . are declared to be citizens of the United States’ . . . comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood.”
The view that citizenship by birth is a hereditary prize that can only be passed down by parents who enjoy privileged status, in other words, long predates Donald Trump. Nor, for that matter, is Trump’s specific claim that birthright citizenship acts as a “magnet” for immigrants he views as undesirable anything new. During the debate over the Fourteenth Amendment, Sen. Cowan renewed his nativist objection, warning that birthright citizenship would encourage more Chinese immigration to California and more Roma immigration to Pennsylvania.
But Cowan (and Trump’s) views did not carry the day in the immediate wake of the Civil War. The overwhelming majority of Congress and the state legislatures rejected the idea of tainted blood that drove the Dred Scott decision, and they wrote the principle of birthright citizenship into the Constitution itself.
And yet, despite the fact that birthright citizenship has been part of the Constitution for nearly 150 years, Trump’s proposal enjoys a great deal of support in Republican circles. New Jersey Governor, and Trump’s fellow presidential candidate, Chris Christie (R) recently said that birthright citizenship “may have made sense at some point in our history, but right now, we need to re-look at all that.” Similarly, Sen. Rand Paul (R-KY), another presidential candidate, said in 2010 that “[w]e’re the only country I know of that allows people to come in illegally have a baby and then that baby becomes a citizen. And I think that should stop also.”