In this part, we’ll turn our attention to the developments in citizenship law after the 1857 Dred Scott decision.
The first significant development we’ll note is an 1862 Opinion on Citizenship written by Abraham Lincoln’s Attorney General, Edward Bates. Then, after the Civil War, there was a great debate in Congress regarding rights and citizenship for the 4 million freed slaves. Finally, we’ll look at an 1872 case that is sometimes used to support the birther claim.
Our sources for this period of American history will include:
- Opinion of Lincoln’s Attorney General Edward Bates (1862)
- The Senate and House debates on the Civil Rights Act of 1866 and the Fourteenth Amendment (1866)
- A statement from US Supreme Court Justice Samuel Freeman Miller in the Slaughter-House Cases (1872)
Opinion of Lincoln’s Attorney General Edward Bates (1862)In the late summer of 1862, Captain Francis Martin, a Revenue Service inspector at Perth Amboy, New Jersey, made what ought to have been a routine boarding of a coal ship — the Elizabeth and Margaret — for inspection.
Although the ship had already been boarded twice without incident in July, Martin on this occasion — for whatever reason — detained the ship, on the grounds that the skipper, a Mr. David Selsey, was “a colored man.”
According to a 1793 law regulating the “coasting” trade, captains of such boats were required to be US citizens — and the Supreme Court, as we saw in Part 3, had ruled 5 years earlier that African Americans were not, and could never become, United States citizens.
Inquiries of what to do about Mr. Selsey and the “eight or ten” African American skippers in the area went up the line to Secretary of the Treasury Salmon P. Chase.
Secretary Chase, in turn, consulted the Attorney General.
The result was a 27-page letter to Mr. Chase, in which Bates wrote:
We have natural-born citizens (Constitution, article 2, § 5), not made by law or otherwise, but born. And this class is the large majority; in fact, the mass of our citizens; for all others are exceptions specially provided for by law. As they became citizens in the natural way, by birth, so they remain citizens during their natural lives…
The Constitution itself does not make the citizens (it is, in fact, made by them). It only intends and recognizes such of them as are natural — home-born — and provides for the naturalization of such of them as were alien — foreign-born — making the latter, as far as nature will allow, like the former…
As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than “the accident of birth” — the fact that we happened to be born in the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and re-affirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural-born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or colour, or any other accidental circumstance.
Since birthers claim there is a huge distinction between the terms “natural born citizen” and “natural born subject” (with the former somehow requiring citizen parents while the latter does not) we might also note Bates’ opinion on that matter:
In my opinion it is a great error, and the fruitful parent of errors, to suppose that citizens belong exclusively to republican forms of government. English subjects are as truly citizens as we are, and we are as truly subjects as they are.
In this, Bates agreed with Judge Gaston of North Carolina, who earlier had stated, in essence, that the only real difference between a citizen and a subject was that a citizen’s allegiance was to the entire body of people in the nation, while a subject’s allegiance was to a king.Bates dismissed the importance of the Dred Scott ruling, concluding,
“I give it as my opinion that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.”
On hearing of Bates’ official letter, the New York Times proclaimed, “The Dred Scott Decision Pronounced Void.” The Revenue Service went back to ignoring Scott v Sandford. David Selsey and the other African-American skippers continued to ply their trade along the coasts of the United States, just as they had done for years. And the stage was set for Congress to believe, contrary to Chief Justice Taney’s opinion, that they possessed the authority to pass the Civil Rights Act of 1866.
The Senate and House debates on the Civil Rights Act of 1866 and the Fourteenth Amendment (1866)Four years later, the Civil War was ended, and a bloodied nation had begun to rebuild — differently, this time.
This time, the institution of slavery would be swept away.
In December, the Thirteenth Amendment had begun to achieve what Lincoln’s Emancipation Proclamation had only touched on — it had outlawed slavery in the United States, and (in name, at least) it had set free some 4 million Americans.
What kind of rights, if any, these newly freed Americans would actually have would require a lot more work.
The Civil Rights Act of 1866 was intended to assure basic civil rights for the newly freed slaves. Along the way, a debate naturally arose regarding whether African Americans were United States citizens. It became obvious that the bill should issue a declaration to that effect.
The idea was to affirm that all persons born in America — not just white people — were citizens. Indians in tribes, however, were a problem. They did not participate in United States society. They lived as members of separate, sovereign nations even though on United States soil. They were subject to United States laws only to the extent that they left their tribes and entered the white man’s world. Otherwise, they were accountable only to tribal law. In that sense, they were simply not subject to the jurisdiction of the United States government.Some of our Senators and Representatives strenuously opposed the recognition that black Americans were citizens. A few also opposed such recognition for members of other ethnic groups, particularly Chinese people and Gypsies. The sentiment of this group was summed up by Senator Garrett Davis of Kentucky:
“It is a white man’s government. I say that the
negro is not a citizen.”
Davis’ faction, opposed to both the Civil Rights Act and to the Fourteenth Amendment which would follow, would have been much larger — but for the fact that the Confederate states, defeated in the war, were at that time not allowed any representation in Congress!
Against those of Davis’ mind were aligned such champions of liberty and civil rights as Senators Lyman Trumbull of Illinois and Jacob Howard of Michigan, Representatives James Wilson of Iowa, John Bingham of Ohio, Lot Morrill of Maine, Burton Cook of Illinois, and others. On occasion, the confrontation was direct:
Trumbull: Will the Senator from Kentucky allow me to ask him if he means to assert that negroes were not citizens of any of these colonies before the adoption of the Constitution?
Davis: I will come to that presently.
Trumbull: I understood him to assert that they were not citizens when the Constitution was adopted in any of the states, and to challenge contradiction.
Davis: I say they were not.
Trumbull: Does the Senator wish any authority to show that they were? If he does, I will state that I have before me —
Davis: When I get through you can answer me.
Trumbull: I understood the Senator to challenge me to produce any proof on that point, and I thought he would like to have it in his speech. I can assert that by a solemn decision of the supreme court of North Carolina they were citizens before the adoption of the Constitution.
Davis: If the honorable Senator will allow me, I will get along with my remarks.
Trumbull: I think you will get along better by not being exposed in your statements.
The Civil Rights Act passed. But it was not enough. The Dred Scott decision left the haunting prospect that the bill might be declared unconstitutional, or that a future Congress might repeal it.
To prevent such a thing from happening, our Senators and Congressmen introduced the Fourteenth Amendment to the Constitution, which was successfully adopted by 1868.
Birthers have taken several quotes from the debates on the Civil Rights Act of 1866 and the Fourteenth Amendment completely out of their context, using them to “proof-text” their claim that it takes citizen parents to be a natural born citizen.
It is a gargantuan task to actually read the debates. Just the House debates for the Civil Rights Act alone took up two entire weeks of floor time, with some 40 speeches being made.
Having made the effort earlier this year to diligently work my way through the entire debates, for both house of Congress and for both the Civil Rights Act and the Fourteenth Amendment, I can tell you with complete authority that these laws absolutely do NOT mean what the birthers claim they mean.
The Civil Rights Act says, “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
The Fourteenth Amendment similarly declares, “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 birthers claim that these clauses exclude children born on US soil of non-citizen parents from natural born citizenship. In spite of the out-of-context quotes from Lyman Trumbull, John Bingham and Jacob Howard put forth by birthers, the claim is simply and categorically false.
The ONLY persons, born on US soil, intended in these debates to be excluded from citizenship (including “natural born” citizenship) were Indians in tribes and the traditional historical exceptions from the English common law: the children of ambassadors, foreign royalty, and occupying armies.
People argued about black Americans, on the basis of their race. They argued — a little bit, at least — about Chinese people and Gypsies, on the basis of their race, and of their relative isolation from the mainstream society.
But not once in the entire debates did any Senator or Representative — including those who were opposed to the measures — ever maintain that the children born on US soil of white, European non-citizen immigrants were not natural born citizens, or that such persons had ever been excluded from being natural born citizens.
The quote from Lyman Trumbull that is abused by birthers (“What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.“) was a response to the suggestion that Indians in tribes would be declared citizens. The full quote is as follows:
That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes… Do we pass a law to control them? Are they subject to our jurisdiction in that sense?
The phrase “subject to the complete jurisdiction thereof” simply means fully subject to United States laws.” In that sense, all immigrant non-citizens are “subject to the complete jurisdiction thereof.”
And yet birthers take the quote of context, and present it as if Trumbull were speaking of non-citizen immigrants, when he clearly was not.
A previous article dealt with the quote from Representative John Bingham similarly taken out of context and used by birthers to “proof-text” their claim.
Finally, the following passage illustrates and clarifies the understanding of our Senators on this issue:
Mr. WADE. The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Most assuredly they would be citizens of the United States unless they went to another country and expatriated themselves…
Mr. FESSENDEN. Suppose a person is born here of parents from abroad temporarily in this country.
Mr. WADE. The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case.
So according to our Senators, the ONLY people born in the United States who would not be citizens at and by birth, were those from the traditional common-law exceptions: children of royalty, ambassadors, and occupying armies. Even if a child were born in the United States of people here on a temporary visit, the understanding of our Senators, during the debate, was that such a child would be born a US citizen.
And they were not at all concerned about that prospect. That was the last that was said of it.
The next week, Senator Jacob Howard, while reintroducing the topic, said something that (like every other quote they cite from the debates) has been stripped of its context and misrepresented by the birthers:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
Birthers claim that “foreigners, aliens” is something different from “who belong to the families of ambassadors or foreign ministers.”
Grammatically, the sentence is structured to imply that all three are simply a restatement of the same thing. By “foreigners” and “aliens” Howard means those who “belong to the families of ambassadors or foreign ministers.” Or, an alternate reading is that “foreigners” means “aliens who belong to the familes of ambassadors,” etc. In any case, the sentence completely lacks the “and” or “or” between the words that would mean that they are something different.
Aside from that: we know from the Senate record that Senator Howard was present in the room, speaking, just before Senator Wade began, and only minutes before Fessenden asked his question above: “Suppose a person is born here of parents from abroad temporarily in this country?” And we also likewise know — for certain — that Howard was present after Senator Wade finished his speech.
And Jacob Howard made no objection to Wade’s reply — that the only exceptions those traditionally recognized, such as the children of foreign ministers. Senator Howard also strongly implies, in his reintroduction, that he has been present to hear every word.
Therefore it is clear that Jacob Howard was simply restating the same thing that Senators Fessenden and Wade had concluded the previous week, which he had been in the chamber to hear.
The consensus, indeed, of these debates — and it was a consensus on all sides — was that, at least as it concerned the “desirable” races, children born on US soil of non-citizen immigrant parents were themselves United States citizens. It does not seem that this fact was contested even one single time in the entire long course of the debates.
For this reason, these debates are further evidence against the birther claim.
Many other quotes from these debates are available here.
We will wrap up this important phase of history by looking at a Supreme Court case that is sometimes cited in favor of the birther claim.
A Statement from Justice Samuel Freeman Miller in the Slaughter-House Cases (1872)
The city of New Orleans, in the mid 19th century, was an awful place to live if you wanted clean drinking water. A mile and a half upstream, slaughterhouses gutted 300,000 animals a year. One presumes it was easier to float fully-laden boats downstream to the city and return upstream empty, than doing things the other way around.
As a result, New Orleans drinking water was constantly contaminated with animal entrails, dung, urine, and blood. This led to 11 cholera outbreaks in just 37 years.
The state legislature passed a law requiring the butchers to relocate to the south of the city. More than 400 butchers banned together and sued, alleging that their rights under the new Fourteenth Amendment (which was color-blind in its civil rights wording) had been violated. The result was the consolidation of several lawsuits into one, which reached the Supreme Court in 1872 as the Slaughter-House Cases. This case was the first Supreme Court interpretation of the Fourteenth Amendment. And as we’ve seen, it was really about civil rights.
However, in his Opinion, Justice Samuel Freeman Miller makes a statement that touches on citizenship.
Now the Fourteenth Amendment begins:
“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.”
In the majority opinion, Justice Miller says:
“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Once again, we have a statement in the Supreme Court which — on its face — seems to support the Apuzzo/ birther claim, since it says that “children of… citizens or subjects of foreign States born within the United States” were not “subject to its jurisdiction.”
But once again, it quickly gives way to serious problems.
The Supreme Court in US v Wong Kim Ark (1898) examined this exact comment, but classified it as non-authoritative dicta:
“This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together — whereas it was then well settled law… that consuls… are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.”
All of which says, quite clearly, that the statement was simply a non-authoritative side comment.
In addition, the 1898 Court said that when push came to shove, the statement clearly did not represent a committed opinion of the 1872 Court on the status of US-born children of aliens:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench…”
The majority Opinion from 1898 then quotes the very passage of Minor v Happersett (a case we will look at in Part 5) that birthers quote to “support” their claim — but it does so as evidence against such a claim!!
Third, as noted above, a careful and honest reading of the Congressional debates on the Civil Rights Act of 1866 (which paved the way for the Fourteenth Amendment) and of the debates on the Fourteenth Amendment itself make it clear that the statement is simply not true. Again, as noted, the ONLY people our Congressmen in those debates regarded as “not subject to the jurisdiction of the United States” were Indians under tribal government, and children born here of foreign ambassadors and royalty and invading armies.
The statement by Justice Miller, then, was simply and clearly erroneous. And as an erroneous statement — which was also recognized as non-authoritative dicta by the later Court — it fails to give any support to the two-citizen-parent claim.
To Be Continued in Part Five
If you’ve read this far, know that the hard part is behind us. There’s not that much further to go.
In Part Five, we’ll complete the journey to the 20th century, pausing briefly to look at two Court cases — the one that Mario Apuzzo and other birthers claim settled the “natural born citizen” issue… and the one that actually did.
And we might just find a new voice in the birthers’ favor along the way.