On Tuesday, the nation will celebrate the 125th anniversary of the Supreme Court’s decision in United States v. Wong Kim Ark, which affirmed that all people born in the United States are U.S. citizens. Yet birthright citizenship remains vulnerable to attack. Hostile members of Congress regularly propose legislation that would deny citizenship to the children of unauthorized immigrants. President Donald Trump also railed against citizenship for the children of immigrants who “walk over the border” and “have a baby,” describing it as “frankly ridiculous.”
The court’s flawed rationale for its decision 125 years ago may be one reason birthright citizenship is still questioned today. Then, the court primarily defended birthright citizenship as a common-law rule inherited from England, under which all born on territory controlled by the Crown were “natural-born subjects” who “owe obedience” to the King.
By framing citizenship as a relic of feudalism, the court overlooked a far more compelling backstory for this constitutional right: the antebellum battles between free and slavery states over the fate of enslaved people who reached free soil. Freedom for all, not compelled allegiance to a king, is the foundation for the constitutional right that made Wong Kim Ark a citizen of the United States. And its egalitarian roots remain a potent justification for birthright citizenship today.
In 1866, a Congress familiar with the frequent clashes between free and slavery states over slavery drafted the Constitution’s Citizenship Clause.
Decades before the Civil War, many Northern states had abolished slavery based on birth within their borders. New York, for example, enacted a law in 1799 declaring: “[A]ny Child born of a slave within this State after the fourth day of July next, shall be deemed and adjudged to be born free.” New Jersey, Pennsylvania, Connecticut, Illinois and Rhode Island did the same, proclaiming all born within these states’ borders to be automatically free. These “birthright freedom” laws cut to the core of hereditary slavery, which perpetuated itself through the ironclad rule that the children of enslaved women were born enslaved.