Birthright citizenship is the foundation of American democracy. The birthright principle, rooted in common law and the Reconstruction era’s 14th Amendment, guarantees citizenship to the children of US citizens and to everyone born within the country’s borders. The grant of citizenship at birth has a powerful egalitarian effect, making every American—at least in theory—an equal stakeholder in the political community. Yet it brings about this desirable result through what can only be described as arbitrary means. One inherits citizenship from one’s parents or acquires it based on the happenstance of one’s place of birth. Our democracy of equal-born citizens is therefore built on a fundamental inequality: the unearned privilege of winning what the scholar Ayelet Shachar has called “the birthright lottery.”
Two recent histories explain how the illiberal birthright principle has become so fundamental to modern democracies. In Race Is About Politics, the French historian Jean-Frédéric Schaub offers an elegant and polemical account of how the idea of racial difference, first crafted in medieval Spain, grew into a defining form of political otherness. Birthright Citizens, the most recent book by the prominent historian of law and race Martha S. Jones, gives us a closer look at how this process unfolded in the United States. Taking us through the streets and into the courthouses of 19th century Baltimore, Jones shows us how free African Americans asserted their citizenship as a birthright in order to counter the hereditary logic of race and, in so doing, helped lay the groundwork for the 14th Amendment’s guarantee of citizenship to all those born on US soil.
Taken together, Race Is About Politics and Birthright Citizens show the power as well as the limits of birthright politics—how it can be a vehicle for liberation and equality and how it can serve the cause of racial and ethnic exclusion. Both books acknowledge the potential of birthright politics to generate inclusive and equal citizenship. They also show that beneath its surface, currents of inequality persist that can make it a treacherous medium for creating a more just society.
Birthright has been part of political life at least since Jacob bought the blessings of the firstborn from his brother, Esau. From the ancient world through the early modern era, birth determined one’s station in life. Born a king or a nobleman, one had rights and duties that a commoner would never have. One’s place of birth mattered, too: The native sons of a city had privileges denied to the peasants born a stone’s throw outside its walls. However, in practice, the premodern world was more socially and politically dynamic than the theory might suggest. Commoners could become noblemen—kings, even—and nobles could fall into a penury little different from that of the peasantry. But the principle of birthright remained the rule. A natural-born subject, wrote the English jurist William Blackstone in 1765, owed a “perpetual” allegiance to his sovereign from the moment of his birth, one that could never be “forfeited, cancelled, or altered.”
Starting in the mid-15th century, birthright politics took on a new form: the notion of race. As Schaub observes early in his book, the history of race is often flattened into a timeless and universal practice of differentiation based on how people look. But the idea of race, he insists, began as something else. It was not about appearance at all; in fact, early racial thought differentiated among groups that looked alike. Race was an ideology that sought to draw boundaries of political community through genealogy and birthright. By “naturaliz[ing]” forms of “sociopolitical difference,” it applied a new and pernicious patina to the age-old practice of inherited political status.
To make his argument, Schaub retells the story of the racialization of Jews in the Iberian Peninsula—which he sees as a key passage in the development of both racial thought and modern birthright politics. Starting in the eighth century, most of Iberia fell under the rule of a succession of Muslim states, which were content to let the region’s large Jewish population exist in relative peace and autonomy. But as Christian kingdoms gradually conquered the peninsula during the Middle Ages, they and the Catholic Church sought to enforce religious conformity on their newly acquired lands. Jews were massacred or subjected to mass forced conversions. In 1492 the “Catholic Monarchs” Ferdinand and Isabella of Aragon and Castile completed the conquest and brought this process to its conclusion, forcing all of the remaining Jews to convert to Catholicism or leave.
Yet even as they were stamping out the last pockets of Judaism in Iberia, Spain’s Old Christians, jealous of the social and political power they might lose to the new converts, were finding ways to perpetuate their outsider status. By the 1440s, Old Christians had formalized in law an early form of racial ideology that rested on a distinction between two kinds of otherness: Jewish belief and Jewishness. The Jewish faith could be washed away at the baptismal font. But Jewishness was something else altogether—a form of genealogical inferiority embedded in Jewish bodies. It passed from one generation to the next, and it was unalterable. Jews were a different people as well as a different faith. Although they could convert, they would retain their racial otherness (which was also invisible, since the conversos looked just like the Old Christians).
In the decades after their first contact with the Americas in 1492, Iberians and other Europeans carried this emerging racial ideology around the globe, creating an expansive portfolio of racializing theories to mark off many other groups as permanent outsiders. They increasingly imagined Native Americans and sub-Saharan Africans as distinct races, granting themselves license to take their lands and reduce their people to serfdom or slavery. Unlike the conversos, many of these populations had physical features, especially skin color, that created visible forms of distinction between them and Europeans. Though Europeans used these features to identify the members of the various “races,” their fundamental difference, they insisted, was genealogical—an inheritance from birth, as with the Jews of Iberia.
The racialization of non-Europeans in the Americas and Africa thus became an essential part of European efforts to draw lines of political exclusion within and around their empires, putting millions of people outside the circle of citizenship and, in some cases, outside the circle of humanity itself. Unlike other forms of identity and political membership, this birthright politics enfolded many Europeans, including women and even members of other religious groups, as natural-born members of a racial community. But it excluded many others and insisted that belonging was an immutable fact, lodging racial otherness in the body and making the boundaries between in-groups and out-groups permanent and unalterable.
This racialized logic of birthright, as Schaub observes, has remained latent in Western politics ever since, wielded by dominant groups over and over again as a way to slow down or stop the social and political ascent of subordinated communities.
When the United States emerged as an independent nation, it seemed to promise at least a partial break from the idea that political belonging should be the result of birth alone. Starting with their 1776 decision to disavow the British monarch, American revolutionaries insisted that theirs was a community of citizens who freely chose to be part of the nation. Their actions in subsequent decades gave some substance to those claims. The 1790 Naturalization Act, the new nation’s first immigration law, let any free white person enter the country and become an American citizen more or less at will. Some US politicians even seemed inclined to accept the claim that citizens could expatriate themselves—that is, give up their citizenship. In 1795, Supreme Court Justice James Iredell even ruminated about whether expatriation was a “natural, inalienable right” that could not be limited or regulated by the state.
Yet status by birth entrenched itself in the politics of the new republic as well. A few exceptions aside, the nation’s founders embraced a birthright notion of race not unlike that of the Spanish—which they then used to justify slavery and the denial of rights and citizenship to nonwhite people living in US territories. At the time of the American Revolution, roughly one out of every six inhabitants of the American colonies was an enslaved African. White Americans justified their status on the grounds that Africans were members of a different and inferior race, whose stain passed from generation to generation.
Members of the founding generation, eager to expand the white population of their new country, took an equally expansive view of the birthright principle’s application to members of their racial group. David Ramsay, a South Carolina congressman and early theorist of US citizenship, believed that American citizens “transmitted” their citizenship to their children “by inheritance.” Before long, judges and legislators had extended this potent principle of hereditary citizenship to include any white person born to US citizens abroad and to white people born to noncitizens on American soil.
In Birthright Citizens, Jones explores how a small but significant free African American community tried to turn the young republic’s birthright politics on its head, transforming a doctrine of exclusion and hierarchy into a means by which they could claim a place for themselves in American society. Free African Americans, like many people of color in the Atlantic world, were relentlessly pursued by the possibility that their race, not their status as free people, was their true birthright. The risks of exclusion or expulsion and the nightmare of reenslavement were a constant presence in their lives. Claiming American citizenship as an inalienable birthright was a crucial way for free African Americans to overcome these dangers—and, Jones argues, their claims had a lasting impact on the nature of citizenship for all Americans.
Baltimore was a center of these efforts by free African Americans to assert their inborn right to US citizenship, and Jones focuses her narrative on their story. As members of an old and relatively wealthy community, Baltimore’s African Americans were well equipped to use the city’s courts as a forum for demonstrating their citizenship by exercising the rights of free people. They sued fellow Baltimoreans of both races over matters great and small, from a debt of a few tens of dollars to control of a prosperous Methodist church and its property. These suits protected their property, but they also had symbolic value: Even an unsuccessful suit affirmed a litigant’s status as a legal person. While in court, black litigants could, as Jones put it, become “peers to their white counterparts.” And the act of going to court, repeated year in and year out, could be used to make claims, however tenuous, about citizenship and equality.
But exercising one’s rights in court proved to be a weak guarantor of African American citizenship. Throughout the antebellum period, in Baltimore and elsewhere, white legislators and jurists worked to reduce African Americans to the status of “denizens,” a category in English common law for individuals who were designated neither native nor foreign and occupied a middle ground between full membership and full exclusion. In Maryland alone, the state legislature heaped on law after law that sought to impose this second-class status on black people in the state. African Americans could not freely or easily leave the state, they could not vote, and they faced restrictions on owning firearms (though in practice, white judges in Baltimore routinely granted gun licenses to black men). African American citizenship, in short, was perpetually under assault.
Starting in the 1820s, Baltimore’s African Americans found their citizenship status threatened in a new and frightening way by the so-called colonization movement. Colonization was a project, led by white Americans, that sought to empty the country of free people of color. Most proponents of colonization did not envision forcibly expelling free people of color but wanted them to leave of their own volition. Yet even if it was not backed by a threat of force, colonization posed an existential threat to African American citizenship: All such projects rested on the assumption that the true home of African Americans was somewhere else. When coupled with measures designed to make life in the United States difficult for free people of color, as it often was, colonization took on the sinister, coercive overtones of ethnic cleansing.
To counter the threat of colonization and other efforts to reduce them to the status of denizens, black Baltimoreans and their allies began to declare their citizenship an inalienable birthright. “We are Americans, having a birthright citizenship,” wrote the Pennsylvanian African American leader Martin Delany in 1852, and activists in Baltimore transformed this claim into their political creed. Inalienable citizenship was defined by the same birthbound language that was used to exclude them. In 1831, Baltimore’s leading black citizens issued a declaration proclaiming themselves natives of the “land in which we were born” and insisting that it was thus their “true and appropriate home.” William Yates, a white activist whom Jones discusses at length, expanded on this notion in an 1838 treatise. Free people of color, he argued, were undoubtedly citizens because they were “natives of the country.”
These claims by black Baltimoreans began to resound forcefully beyond the city’s borders in the run-up to the Civil War. The most striking illustration of their reach, curiously enough, came from the pen of a famous opponent of black citizenship, Chief Justice of the Supreme Court Roger B. Taney. As a son of the city and a leading Maryland politician before joining the court, he was intimately familiar with the black Baltimoreans and their claims to US citizenship. Both were clearly on his mind in 1857 when he authored the court’s notorious opinion in Dred Scott v. Sanford, an appeal of a freedom suit brought by an enslaved man from the Midwest. Going well beyond what was necessary to resolve the case presented to the court, Taney decided to use it as an opportunity to pronounce against African Americans’ aspirations to citizenship in general. His opinion provided a decisive rebuff to black Baltimoreans’ claims. African Americans, he baldly declared, were “not citizens.” The “unhappy black race,” he continued (in language that closely echoed the Iberians’ more than four centuries earlier), “were separated from the white by indelible marks.”
Jones’s book closes with a brief discussion of Reconstruction, which gives a tantalizing glimpse of the connections between African American claims to birthright citizenship in the antebellum period and the arguments about it after the Civil War that culminated in the 14th Amendment. The aftermath of the war saw a final struggle, played out across the country, to remove the persistent doubts about the citizenship status of former enslaved people and freeborn African Americans alike. The 14th Amendment, adopted in 1868, aimed to remove all ambiguity on this point by constitutionalizing the very principle of birthright citizenship that activists for African American rights had been hammering home for decades. “All persons born…in the United States, and subject to the jurisdiction thereof,” the amendment states, “are citizens of the United States.” By the time this language was adopted, black Baltimoreans were no longer prophets in the wilderness: The idea of citizenship for African Americans had gained substantial acceptance in the North. But they were surely gratified to find their argument set, at long last, into the US Constitution.
In the century and a half since its ratification, the citizenship clause of the 14th Amendment has been without doubt a force for good, a powerful instrument for unambiguously confirming membership in the American nation. In the late 19th and early 20th centuries, in the face of virulent anti-Chinese racism, the clause guaranteed the citizenship of individuals born to Chinese parents on US soil. It did likewise for the children of Eastern and Southern European immigrants who came to the United States in the early 20th century, and in more recent times, it has extended citizenship to the American-born children of undocumented immigrants from Latin America and other regions.
Yet as Schaub’s historical genealogy of racial thought reminds us, there is a flip side to this coin. Like the idea of race to which it is sometimes opposed, the birthright principle works through inheritance, passing status from parent to child as if it were an innate quality in a bloodline. It can also confer the same status based on the accident of where one is born. In either case, the birthright principle distributes citizenship’s privileges and blessings by chance rather than in accordance with any higher principle of justice. In practice, this means equality for some is bought at the price of arbitrary exclusion for many.
For much of the recent past, Americans have uncritically accepted the bargain we have struck between these two faces of the birthright principle. The benefits of inclusion have seemed to far outweigh its exclusionary, illiberal mechanism for deciding who is in and who is out. But in our age of global inequality, it is clear the arbitrary belonging created by birthright politics is no longer adequate to our moment. Globally, the distribution of wealth among the world’s countries has reached unprecedented levels of inequality and continues to grow more extreme. The negative externalities of runaway consumption, above all climate change and its effects, are falling hardest on the countries and peoples least able to bear the burden. Infectious diseases—of which the novel coronavirus is just the latest arrival—kill millions of people in poorer countries as the citizens of the richest nations shut their gates and hoard medicine and supplies. How is it even remotely fair to allocate citizenship in the world’s nations by mere random chance when so much depends on which ticket one draws?
Rethinking the politics of birthright will not be easy. The roots of birthright belonging extend deep into the soil of the American political tradition. And as Schaub and Jones remind us, over the past two centuries we have gained a great deal, in terms of equality and inclusion, from the audacious grafting of democratic institutions onto a political community defined by birthright. But as the modern world of nation-states enters its third century and perhaps comes to its crisis, we will have to take a hard look at the birthright principle and decide if it is still right—if, indeed, we can still accept it. Should birth alone dictate so much about who we are?