How African Americans Fought For & Won Birthright Citizenship 150 Years Before Trump Tried to End It

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As President Trump claims that he can end birthright citizenship in the United States, we speak with professor Martha Jones about the history of the 14th Amendment, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Martha Jones is the author of “Birthright Citizens: A History of Race and Rights in Antebellum America.” She is the Society of Black Alumni presidential professor and professor of history at Johns Hopkins University.

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: We begin today’s show with President Trump’s claims that he will end constitutionally protected birthright citizenship in the United States. In an interview released Tuesday, Trump told the news outlet Axios that he planned to sign an executive order ending citizenship for children of noncitizens born on U.S. soil.

Civil rights groups, legal experts and politicians on both sides of the aisle are blasting Trump for his comments, including the false claim that the U.S. is the only country with birthright laws. In fact, at least 30 other countries have similar laws, including Canada, Mexico and Cuba.

This is Trump speaking with reporter Jonathan Swan.

PRESIDENT DONALD TRUMP: How ridiculous. We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.

JONATHAN SWAN: Have you talked about that with counsel?

PRESIDENT DONALD TRUMP: Yeah, I have.

JONATHAN SWAN: So, where in the process do—

PRESIDENT DONALD TRUMP: It’s in the process. It’ll happen.

AMY GOODMAN: Trump’s executive order would violate the 14th Amendment of the U.S. Constitution, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The 14th Amendment turned 150 years old in July.

The American Civil Liberties Union has lambasted Trump’s plan, tweeting, “This is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms.”

JUAN GONZÁLEZ: On Tuesday, Republican Senator Lindsey Graham said he would introduce a bill to support Trump’s citizenship plan. But House Speaker Paul Ryan criticized Trump’s comments while speaking to Kentucky radio station WVLK.

SPEAKER PAUL RYAN: You obviously cannot do that. You cannot end birthright citizenship with an executive order. As a conservative, I’m a believer in following the plain text of the Constitution. And I think, in this case, the 14th Amendment is pretty clear.

AMY GOODMAN: For more, we go to Baltimore, Maryland, where we’re joined by Martha Jones, the author of the new book Birthright Citizens: A History of Race and Rights in Antebellum America. She is the Society of Black Alumni presidential professor and professor of history at Johns Hopkins University. She’s also co-president of the Berkshire Conference of Women Historians.

Professor Jones, welcome to Democracy Now! Thanks for joining us from Johns Hopkins. You know, whether or not this is a ploy, leading into the midterms, to just galvanize more support for President Trump from his anti-immigrant base, what’s very interesting is where birthright law comes from, where the 14th Amendment to the Constitution—how it developed. And that’s what you document in your book Birthright Citizens. Tell us its origins.

MARTHA JONES: Yes. You know, the U.S. Constitution, the 1787 Constitution, was largely silent on the question of citizenship. And so, the issue arises when we have the emergence of communities of free African Americans. These are people, former slaves, who, by the early 19th century, have created families, communities, have woven themselves into the everyday fabric of the nation, but they occupy an ambiguous status before the Constitution. There were those who argue that race is a bar, that blackness prohibits citizenship for African Americans. And there are others who begin to make this argument that, no, citizenship is not rooted in race, citizenship is rooted in birth. And African Americans seize on this and wage a campaign, over many decades, in the years preceding the Civil War, advocating for their status as permanent members of the body politic, as full members of the body politic, by virtue of birthright.

JUAN GONZÁLEZ: And then, of course, the Dred Scott decision, the infamous Dred Scott decision, during the battles over the future of slavery in America, could you talk about the impact of that on this debate?

MARTHA JONES: Absolutely. Dred Scott is himself an enslaved man who is suing for his freedom. He’s doing so in a federal court. And the question arises—does he have standing or the capacity to sue in a federal court?—because only citizens can bring cases there. And the court concludes, certainly, that Dred Scott himself is not a citizen—he is a slave—but then goes further to declare that no black person, be they enslaved or free, can ever be a citizen of the United States.

This is a devastating blow, as you can imagine, to free African Americans, who have long promoted the view that they are birthright citizens. But what’s important to remember about Dred Scott is that its impact on the ground in the daily lives of African Americans is very limited. Very few courts are willing to enforce the literal terms of Dred Scott in the cases that they hear. State legislatures are not prepared to defer to the court’s reasoning. And African Americans, even in the face of the devastating rhetoric in Dred Scott, continue to wage a campaign for citizenship into what then becomes the era of the Civil War.

AMY GOODMAN: I’m sure you have found, as a historian teaching at a university, how little knowledge there is of history. And when you refer just to Dred Scott, explain who he is and his crusading attempt to challenge this and how the amendment comes out of what? This perhaps most racist decision of the U.S. Supreme Court. But it came out of activism. It came out of Dred Scott’s bravery. Who was he?

MARTHA JONES: Absolutely. Scott is an enslaved man in the city of St. Louis, Missouri. His case arises because, in the company of his owner, Scott travels to free territory—among those places, Minnesota. And the claim had long been that persons who were held as slaves but resided in free soil became free themselves. Now, Scott lives in this Minnesota territory. He meets his wife Harriet. They begin to have a family. They marry. And then, finally, they return to St. Louis, where they are still held as slaves. And by the early 1850s, I think they are concerned that they might be sold, that their family might be separated. They are always at risk as enslaved people.

And they begin what is, as you explain, a series of freedom suits, a tireless effort to secure the freedom for themselves and for their two daughters. These cases make their way through the Missouri state courts and, when they fail there, wind up before the U.S. Supreme Court. There, Chief Justice Roger Taney, now notoriously, pens an opinion that deprives the Scott family of pursuing their freedom claims in the federal court, but, as importantly, makes sure that no African American, enslaved or free, can bring claims before these same high court venues.

JUAN GONZÁLEZ: So, could you take us then through what happens subsequent to the Civil War, when the 14th Amendment is adopted, and the intention of Congress and with the passage of the 14th Amendment?

MARTHA JONES: Yeah, absolutely. So, African Americans are going to be among the first to attempt to volunteer in the Civil War era to serve and to support the Union Army. Their view is that this is an extension of their long quest for citizenship, that military service, service to the nation in this capacity, might further open the door or make their case for their status as citizens. The 13th Amendment, as we know, in 1865 will abolish slavery, but the 13th amendment does not comment on the status of African Americans before the law, before the Constitution. This is still an unresolved question. And the campaign to the 14th Amendment is precisely designed to respond to that long campaign that African Americans have waged. It is to resolve the kinds of ambiguities, the kinds of dangers, the kinds of precarity that former slaves face without resort to the status, their status as citizens.

And so, in 1868, after Congress has promulgated a 14th Amendment, the states will ratify it, and for the first time the U.S. Constitution will provide that all persons born in the United States are citizens of the United States. It is a remedy, a radical remedy, to bring millions of former slaves into the body politic, but it is written in a way that gives it a lasting and enduring effect, which is to make every person, regardless of race, and, I might say, regardless of religion, regardless of descent, regardless of political affiliations, make every person born in the United States a citizen of the United States.

JUAN GONZÁLEZ: But now, during that debate over the 14th Amendment, because there are some—a relatively small number of scholars who support this viewpoint of Trump’s that birthright citizenship has been incorrectly interpreted, but that even then, in the debate—wasn’t there a debate as to whether this amendment would extend to people who were the children born here of immigrants?

MARTHA JONES: Immigrants are not what troubles Congress during the 14th Amendment debates. What Congress is concerned about, when it carves out an exception to the 14th Amendment for people not subject to the jurisdiction of the United States—what Congress is concerned about are three things. One, the children of foreign diplomats, who might incidentally be born in the United States, the 14th Amendment does not make them birthright citizens. Congress anticipates the possibility that the U.S. would be occupied by a foreign army. And in that case, the children of soldiers of a foreign army would not be birthright citizens, even if they were born in the United States. The third category of persons who Congress is mindful of are Native Americans. And here, we are in an era where Native communities, Native nations continue to exert and to enjoy independent sovereignty, and Congress does not interfere or impose on that sovereignty by wholesale deeming Native people U.S. citizens. That will happen later in the 20th century.

But it’s to say that, no, Congress is not thinking about what today we might term unauthorized or illegal immigrants, but it does carve out an exception for persons who are said to be not subject to the jurisdiction of the United States. And this is the language that President Trump and others have seized upon as they have looked to constrain or curtail the effect of the 14th Amendment.

AMY GOODMAN: Well, you know, when we were covering the protests around the killing of Michael Brown a few years ago on Florissant Avenue in Ferguson, Missouri, just a few miles down that same road is the Calvary Cemetery, where Dred Scott was buried. But I wanted to go beyond Dred Scott and talk about other cases you look at in Birthright Citizens. I wanted to ask you about Wong Kim Ark, the Chinese-American cook who was born in San Francisco in 1873, at the center of a major, but often overlooked, Supreme Court decision regarding birthright citizenship, United States v. Wong Kim Ark. Tell us what this court case is about, who Wong Kim Ark was, and why it matters today.

MARTHA JONES: So, Wong Kim Ark is essential for understanding where we are today, because he is a son of Chinese immigrants, born in the city of San Francisco. He appears to be a birthright citizen, I think regards himself as such, even as his parents are not eligible to naturalize, by what become the terms of the Chinese Exclusion Act. So, Wong Kim Ark does business in San Francisco, business between San Francisco and China. He leaves the country in the early 1890s. And when he attempts to return at the port of San Francisco, he, like many other people of Chinese descent, is detained at the port and is charged with being a noncitizen of the United States. Why? Because of this curious language in the 14th Amendment about being subject to the jurisdiction of the United States.

The argument on behalf of customs officials goes that a Chinese American born in the U.S. to noncitizen parents is, like his parents, still holding an allegiance to the emperor of China, still foreign, even as he’s born on U.S. soil, and Wong Kim Ark must take his claim to U.S. citizenship all the way to the U.S. Supreme Court. There, in 1898, the court will examine the facts, will return to the 14th Amendment and conclude, unequivocally, that Wong Kim Ark, despite the fact that his parents are not eligible for U.S. citizenship, he himself, by virtue of his birth in San Francisco, is a citizen and has the right, among other things, to come and to go at will.

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