Birthright Citizenship Is Bedrock Americanism

by Van Gosse [submitted to Portside by the author]

The Huffington Post

September 17, 2010

http://www.huffingtonpost.com/van-gosse/birthright-citizenship-is_b_738923.html?

We need to get clear: birthright citizenship was a core
principle at the founding of the Republic in 1776. Yet
now, Senator Lindsey Graham of South Carolina wants to
hold Senate hearings on the bedrock constitutional
precept that "All persons born or naturalized in the
United States and subject to the jurisdiction thereof,
are citizens of the United States."

There is considerable confusion about birthright
citizenship. The nativists and those pandering to them
with talk about "real Americans" and border invasions
by "Muslim Mexicans" (there's an oxymoron for you, and
I use the latter two syllables advisedly) know that the
language above is from the 14th Amendment, passed in
1868 to guarantee citizenship to four million ex-slaves
in the still rebellious Confederate States of America.
Senator Graham suggests that by now it has served its
purpose, and is encouraging a flood of "illegals," who
are ruining our social fabric.

Bad history and noxious politics tend to go together.
We inherited birthright from England, as part of common
law, and it was universally recognized at the
republic's Founding. Every young lawyer in America,
from James Madison to Abraham Lincoln, prepped for the
bar by reading William Blackstone's Commentaries on the
Law of England, which declared:

The first and most obvious division of the people is
into aliens and natural-born subjects. Natural-born
subjects are such as are born within the dominions of
the crown of England, that is, within the ligeance, or
as it is generally called, the allegiance of the king;
and aliens, such as are born out of it.

American legal scholars, lawyers, and politicians
simply adapted the English law of birthright
subjectship to the terms of republican citizenship.
Eminent jurists like Chancellor James Kent, often
called "the American Blackstone," put it clearly in his
Commentaries on American Law:

Citizens, under our Constitution and laws, mean free
inhabitants, born within the United States, or
naturalized under the laws of Congress. If a slave born
in the United States be manumitted, or otherwise
lawfully discharged from bondage, or if a black man be
born within the United States and born free, he becomes
thenceforward a citizen...

By the time Kent wrote these words (1841) a fierce
battle had ensued over whether birthright applied to
all Americans, even those "of color." Kent, along with
a wide range of Northerners, was quite sure it did.
Conversely, a certain kind of white person, by this
time identified with Andrew Jackson's "Democracy,"
asserted that whiteness was a test of Americanism. They
pointed to decisions made by Congress in the 1790s,
restricting membership in the federal militia and
access to naturalization by immigrants to white people.

There were valid arguments on both sides, but generally
the race-blind believers in birthright made a better
case: that ten of the thirteen original states allowed
free black men to vote; that Americans of African
descent had been recognized as citizens by the federal
government in various ways (even Andrew Jackson had
hailed his free black soldiers as "fellow citizens"
after the Battle of New Orleans). No one ever denied
that individual states could and did make black men
citizens, with full voting and civil rights, the
question was whether that made them citizens of the
United States. So when Chief Justice Roger Taney
finally attempted to settle the matter, with his
infamous opinion in Dred Scott v. Sandford in 1857 that
black people never had been and never could be American
citizens, no matter how long they had been here,
respectable opinion across the North was profoundly
shocked. Here Lincoln is representative: he had never
been an abolitionist, and was uncertain about what he
thought of black people, but he knew very well that
they had been and could be American citizens. Dred
Scott went a long way toward radicalizing men like
Lincoln, firming their resolve as Republicans to choke
off slavery and guarantee a nation "by the people, of
the people, for the people," meaning the whole people.

The point of all this history is plain: when you hear
that birthright citizenship is some latter-day concept,
not part of the America conceived by the Founding
Fathers, take a strong drink of skepticism. It is core
to who we are, and the last time it was challenged, a
bloody civil war ensued. We need to protect it, as we
would protect the nation itself.

[Van Gosse is a historian and author specializing in
American political development, the African-American
struggle for citizenship and American society in the
Cold War era and since. He is author of Where the Boys
Are: Cuba, Cold War America, and the Making of a New
Left, The Movements of the New Left 1950-1975, and the
forthcoming We Are Americans: Black Politics and the
Origins of Black Power in Antebellum America. His book
Rethinking the New Left: An Interpretative History was
named a CHOICE Outstanding Academic Book for 2006 and
will be published in translation in the People's
Republic of China. Gosse was the music critic for the
Village Voice from 1979-1984, he also has a special
interest in cultural history, focusing on popular music
and Hollywood film. He has been a member of the Task
Force on Terrorism at the Foreign Policy in Focus
Project of the Institute for Policy Studies in
Washington, D.C., organizing director for Peace Action,
and executive director of the Center for Democracy in
the Americas. Van Gosse is associate professor of
history at Franklin & Marshall College in Lancaster,
PA] 

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