Birthright Citizenship Is A Legacy Of Former Slaves

While the modern birthright debate centers around immigration, the right was actually added to the constitution in 1868 to protect former slaves.

Birthright Citizenship Is A Legacy Of Former Slaves
Library of Congress / William Ludwell Sheppard

President Donald Trump is once again floating the idea to end birthright citizenship for babies of non U.S.-citizens born on U.S. soil.

Trump believes he can do that by executive order, but many legal experts disagree.

And because the nation's attention is so focused on that narrow legal question, it's easy to forget how birthright citizenship came about in the first place. For that, we have to go back to the Reconstruction era and the unsettled fate of African-Americans.

"It wasn't really clear what was going to happen with black people after the war. And so, there was great alarm that we were going to see a situation where if the Southerners came to power, they would have reinstituted slavery," said Alvin Tillery, a political science professor at Northwestern University. 

On the one hand, white supremacists wanted to keep former slaves as their subordinates. On the other hand, emancipationists, such as Frederick Douglass, advocated for African-Americans' full freedom. 

Congress sided with the emancipationists and ratified the 13th, 14th and 15th Amendments. Collectively, these are known as the Reconstruction Amendments. In theory, they protected African-American's equality by banning slavery, defining citizenship, and ensuring voting rights.

"It took another 95 years for the South to be a place where blacks would achieve full equality," Tillery said. "But without those acts, black life would have been much worse in the abstract sense because there would have been no principle for them to challenge what the Confederates were trying to do, and it would have delayed the civil rights movement." 

According to political science professor Alvin Tillery, the 14th Amendment is the most important of all. Besides recognizing that former slaves were citizens because they were born in the U.S., it also guaranteed them due process and equal protection of the laws.

"With the equal protection clause, and the due process clause, all of those rights that come to you as a federal citizen, now your states and your cities are obliged to follow as well. It generates all kinds of positive externalities for everyone of every race in color in the United States."

As a result, the 14th Amendment is one of the most cited Amendments in Supreme Court cases — especially those related to civil rights and minorities. That's why for many civil rights scholars, the current birthright debate is not just about immigration, it's also about understanding how that right is directly connected to some of the most important bedrocks of our democracy.