At a time when the president and leading Republicans are agitating to end birthright citizenship, it is worth reflecting upon the history of the Fourteenth Amendment, which enshrines this concept in our nation’s charter. Today the debate over citizenship is chiefly propelled by concerns about undocumented migrants. In the nineteenth century, Americans likewise had to decide what to do with migrants living among them, but the debate around birthright citizenship was principally driven by questions of what fate should befall the millions of enslaved people liberated by the Civil War, as well as their descendants. When the generation that fought the war decided upon birthright citizenship as the primary solution, it rejected white supremacy and brushed aside the fear articulated by Pennsylvania senator Edgar Cowan, an opponent of the Fourteenth Amendment, of being “overrun by another and a different race.” No people born in the United States, Americans decided, should be forced to live in the shadows.
Historian Martha S. Jones’s central concern in her new book Birthright Citizens is not the legislative debates surrounding the Thirteenth, Fourteenth, and Fifteenth Amendments, often collectively called the Reconstruction Amendments for their role in establishing a post–Civil War legal order. Instead, she is interested in their prehistory during the antebellum period; specifically, she examines how free blacks made their mark on the broader question of political belonging by simply refusing to be treated as anything less than full citizens. They buttressed their actions with sophisticated legal arguments that these rights were already enshrined in the Declaration of Independence, the Constitution, Supreme Court decisions, and natural law. Jones’s scholarship depicts a model of alternative constitutional lawmaking through the generation of local norms.
Though she toggles between national, regional, and state perspectives, Jones always returns to Baltimore to illustrate her argument. Weaving together court records and contemporaneous newspaper accounts, Jones convincingly demonstrates that free black people laid claim to U.S. citizenship by behaving like citizens rather than waiting for others to confer that status upon them. They made contracts, sued people, testified against whites in court, sought relief from debts, worshipped more or less as they wished, and exercised their right to bear arms. “Well before any judicial or legislative consensus granted their rights,” she writes, “free black men and women seized them.” What Jones sketches is an approach to reshaping constitutional norms that depends neither on a favorable national consensus nor on piling up electoral victories. Antebellum blacks traded on cultural notions of respectability and proved they were leading lives deserving of respect and recognition.