Slavery and Birthright Citizenship

Trump v. Barbara, the birthright citizenship case, is currently before the Supreme Court, and there is a vast array of amicus briefs, as well as the briefs of the parties. But one key issue has not gotten the attention it deserves: accepting the government’s position would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment. For that reason alone, the Trump Administration should lose the case, especially from the standpoint of originalism.

Virtually all informed observers agree that the main purpose of the Citizenship Clause was to grant citizenship to newly freed slaves and their descendants, reversing the holding of the Supreme Court’s infamous 1857 Dred Scott decision, which ruled that Blacks could never be citizens of the United States. Indeed, the Trump administration’s Supreme Court brief in Trump v. Barbara says exactly that: “The Clause was adopted to confer citizenship on the newly freed slaves and their children.” But all of the administration’s arguments for denying birthright citizenship to children of undocumented immigrants and non-citizens present in the US on temporary visas would, if applied consistently, also have denied citizenship to numerous freed slaves and children thereof.

The Citizenship Clause states that “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 government’s position depends on the claim that children of undocumented migrants and temporary visa holders are not “subject to the jurisdiction” of the US. But any interpretation of that phrase that excludes these groups would also have excluded large numbers of slaves, their children, and in some cases even free Blacks.

The simplest argument for the government’s position is the idea that illegal entry somehow prevents undocumented migrants and their American-born children from being subject to US jurisdiction. This is extremely dubious, because undocumented migrants are undeniably subject to US law. But, if the argument is true, it would also have excluded large numbers of freed slaves and their descendants. As legal scholars Gabriel Chin and Paul Finkelman showed in an important 2021 article, between the time Congress banned the international slave trade in 1808 and the abolition of slavery in 1865, many thousands of slaves were illegally brought into the US. These illegally imported slaves, in turn, likely had number US-born children and grandchildren. Any interpretation of “subject to the jurisdiction” that bars children of illegal migrants from birthright citizenship would also have barred this large group of freed slaves.

Moreover, as Chin and Finkelman show in their article, the existence of this illegal slave trade was well-known to Congress, President Abraham Lincoln, and the framers of the Fourteenth Amendment. Congress repeatedly enacted legislation to try to curb it, and Lincoln raised the issue in multiple messages to Congress. If the original meaning of the Citizenship Clause excluded this  Chin and Finkelman briefly discuss these points in their recently filed amicus brief, which however doesn’t emphasize and elaborate on them as much as would be desirable.

Another standard argument for the administration’s position is that illegal migrants, non-citizens on temporary visas, and their children lack the requisite exclusive “allegiance” to the United States, because they still owe allegiance to their countries of origin. If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves, as well, even those brought into the US legally.

Africans captured and sold to slave traders owed “allegiance” to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves – unlike migrants – had no desire to leave their homelands and live under the rule of the US government instead. Contrary to racist stereotypes, many West African rulers of the eighteenth and nineteenth centuries had considerably developed states. For example, throughout that period, until it was conquered by the French in 1894, Dahomey was a “monarchy with a highly organized central government.”  Edmund Abaka, Dahomey, in Encyclopedia of the Middle Passage 128 (Greenwood Press, Toyin Falola & Amanda Warnock eds. 2007). Like Dahomey, the Asante kingdom also had a governmental system similar in many respects to European states in the nineteenth century.

And even more primitive tribal rulers could still claim allegiance from their subjects, as the US government recognized in the case Native American tribal governments. This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not understood to be given birthright citizenship by the Citizenship clause, a

The Trump administration and some of its amici (e.g. – Prof. Ilan Wurman) combine the “allegiance” argument with the idea that illegal migrants are not under US jurisdiction because they are not under the “protection” of the US government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a “social compact”and an “allegiance-for-protection” exchange with the US government.

But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the US government than slaves did. While undocumented immigrants are subject to deportation, at least US authorities  still, to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.

When it came to slaves, by contrast, the federal government enacted policies like the Fugitive Slave Acts, intended to keep them from escaping bondage. And that bondage often included beatings, rape, and other horrific violence. If children of undocumented immigrants or temporary visa holders don’t qualify for birthright citizenship because their parents weren’t sufficiently under the “protection” of the US government, that goes double for freed slaves.

Some defenders of the administration argue that undocumented immigrants and temporary visa holders are not “subject to the jurisdiction” of the US because they are not subject to its “complete political jurisdiction,” meaning they do not have the same rights and duties as citizens. This argument appears to have first been advanced by later-disgraced law Professor John Eastman, back in 2015 (Eastman is notorious for his involvement in Trump’s scheme to overturn the results of the 2020 presidential election). The theory runs afoul of the main purpose of the Citizenship Clause for reasons I outlined in a 2024 article:

If the Citizenship Clause covers only children of people who have the full rights of citizens, that would undermine the central purpose of the Clause, which was to reverse Dred Scott‘s notorious holding that Black people – even those who were not slaves – could not be citizens of the United States. In his infamous opinion in Dred Scott, Chief Justice Roger Taney concluded that Black Americans could not be citizens in part precisely because they were denied various legal rights. As Taney pointed out, in most states free Blacks could not vote, could not serve on juries, and were barred from serving in the militia (including under the 1792 federal Militia Act, which limited militia service to white men). If such logic is applied to the Citizenship Clause, Congress or a state government could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, could not be members of the militia, and so on.

Note that even most antebellum free Blacks did not qualify for birthright citizenship under the “complete political jurisdiction theory,” since many states denied them the right to vote, the right to serve on juries, and other rights and duties traditionally associated with full citizenship.

Finally, we have the so-called “domicile” argument, which claims that children of undocumented immigrants are not subject to US jurisdiction because their parents are not properly domiciled in the US. If “domicile” simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the US legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And, as noted above, there were many such illegally delivered slaves.

Moreover, to the extent that the Supreme Court has held that “domicile” matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that , “[o]ne acquires a ‘domicile of origin’ at birth, and that domicile continues until a new one (a ‘domicile of choice’) is acquired.”  Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that “No length of residence, without the intention of remaining, constitutes domicile” in a case where state jurisdiction over a case turned on residency [emphasis added]. Most, if not all, slaves forcibly brought to the US obviously had no “intention of remaining,” but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to “domicile” than slaves did, since the former come voluntarily and and generally have every intention of remaining indefinitely.

In sum, either children of undocumented migrants and temporary visa-holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants, and therefore must be rejected. Either way, the government should not prevail based on the domicile theory.

There are many other reasons why the Trump Administration deserves to lose the birthright citizenship case, some of them outlined in an amicus brief by a cross-ideological group of constitutional law and immigration scholars, which I joined. Prof. Michael Ramsey, one of the other signers, is a prominent conservative originalist legal scholar, and author of perhaps the leading article on the original meaning of the Citizenship Clause.  Prof. Ramsey updated his analysis in this recent article.

But the link to slavery provides a powerful additional reason for ruling against the administration’s position. If accepting any of the arguments backing it would have required denying citizenship to large numbers of slaves and their descendants, that means those theories are at odds with the main objective of the Citizenship Clause and must be rejected for that reason alone.