Don’t Let Trump Erase Immigrants from the Citizenship Clause

What does it mean to be born free? How did the drafters of the U.S. Constitution’s Citizenship Clause think about it? And how should their vision of freedom at birth inform today’s debates over birthright citizenship? 

When defending his plans to deny citizenship to children of immigrants, President Trump has repeatedly claimed that birthright citizenship is about the “the babies of slaves” and “not immigration.” While Trump is (shockingly) correct that redressing the horrors and injustices of slavery was the core purpose of the citizenship clause, he distorts history when he claims that immigrants weren’t included in that conversation. Congress saw clearly the danger of new status-based caste systems arising in the United States, and when they rewrote the Constitution, they intentionally included immigrants.  

In the 1800s, the guarantee of freedom at birth was, perhaps more than anything, what Black parents who escaped from slavery in the South wanted for their children. In 1832, Margaret Morgan, a Black woman, fled from Maryland (a slave state) to Pennsylvania (a free state) with her husband, a free Black man. Margaret had been verbally freed by her enslaver, John Ashmore, 20 years prior, but he did not issue her a written “deed of manumission.” In other words, she was an undocumented free person. When Margaret and her husband had children in Pennsylvania, they surely believed that, her status aside, their Pennsylvania children would be born free from slavery’s shadow.  

Sadly, Margaret’s enslavers and the courts had other plans. When John Ashmore died, his widow hired slave catchers to bring Margaret and her children back to Maryland and force them into bondage. The slave catchers argued that the Fugitive Slave Law outweighed any state-based protections to which Margaret may be entitled. In a case that eventually came before the U.S. Supreme Court, Prigg v. Pennsylvania, eight justices ruled in favor of the slave catchers, allowing Margaret and her freeborn children to be enslaved without due process. 

After the Civil War, cases like Prigg and the similarly heinous Dred Scott decision a few years later motivated Congress to pass an Amendment guaranteeing citizenship to “all persons born or naturalized in the United States.” But some senators, like Edgard Cowan, argued that its broad language should be narrowed to prevent the nation from being “invaded” by a “flood of immigration” from Chinese people, “Gypsies,” and other undesirable groups. The bill was passed in its current form despite these objections because a majority in Congress saw the connection between the institution of slavery and emerging systems designed to exploit and oppress immigrants.  

As California Sen. James Conness pointed out in his rebuttal to Sen. Cowan, before the Civil War (under the influence of its “southern brethren”) California had laws preventing both Black people and Chinese people from testifying in court. After the law was repealed in 1862 for Black people but not for Chinese people, confederate sympathizers “robbed, plundered and murdered” Chinese people with impunity because Chinese people could not testify to the acts committed against them. As a result of his historical experience, Sen. Conness was “very glad indeed that we have determined at length that every human being may relate what he heard and saw in court” and “entirely ready to accept that the children born here of [Chinese] parents shall be . . . entitled to civil rights and to equal protection before the law with other.” Sen. Conness’ arguments carried the day, and the 14th Amendment was passed in its current form, without anti-immigrant restrictions. 

Today, many commentators see echoes of the Fugitive Slave Laws in growing federal efforts to arrest and detain immigrants without due process, to deny citizenship to their American born children, and to strip citizenship from those deemed undeserving. Just as Margaret Morgan’s inability to prove her legal status shaped her and her children’s outcomes 200 years ago, today immigration status is a key deciding factor in determining access to dignified work, health, safety, and a whole suite of rights and privileges which define what it means to be a full member of society.  

People without legal status work some of the lowest paid, most difficult jobs in our society. They are uniquely vulnerable to wage theft, sexual assault and other forms of exploitation precisely because they are often reluctant to testify to the crimes committed against them. As the Trump administration expands deportation efforts in sensitive places, like courtrooms, hospitals and schools, these forms of exploitation are only likely to get worse.  

Now, as in the 1800s, the Supreme Court is playing an active role in the erection and maintenance of this immoral caste system. Until last Friday, undocumented mothers could assume that even if they might be arbitrarily arrested, detained and deported without due process, their children could grow up secure in their status as citizens. Though it did not address the underlying constitutional challenge to Trump’s unilateral attempt to end birthright citizenship, after Friday’s ruling, experts predict that litigation may produce a patchwork of protection, where babies born in some states are rendered stateless and ineligible for benefits, with no ties or guarantees of protection in another country, but no security in their lives here. In short, the President, with the Court’s help, is erecting precisely the kind of caste system that the Framers of the 14th Amendment wished to avoid.  

These are difficult days for immigrants’ rights. But just as the past provides warnings about how government can distort democracy and trample human rights, it also provides examples of how the people can resist. Even after a new Fugitive Slave Act made it a federal crime to assist Black people fleeing slavery in 1850, people continued to stand up for freedom. Journalists like William Lloyd Garrison relentlessly highlighted the illegitimacy of the Supreme Court’s racist rulings. State officials refused to assist federal slave catchers. Neighbors sheltered fugitives in their homes. And everyday people physically resisted attempts to arrest formerly enslaved people.  

Today, similar efforts are underway to resist immigration status-based caste systems. Progressive state officials are working to protect immigrant rights through a mix of litigation, legislation and administrative efforts. Journalists and thought leaders continue to explain how undermining rights and due process for immigrants makes all of us less free. And organizers in cities like Los Angeles have shown the power of direct resistance to immigration raids.  

The Court that condemned Margaret and her children to slavery didn’t get the final say because people resisted and, in some cases, disobeyed unjust laws and fought fiercely for what they knew to be right. That all people have value and no one deserves to live in fear. And that caste systems should have no place in our democracy.  

Birthright citizenship, Deportation, Immigration, Racial Justice