PARADOXICAL CITIZENSHIP. (birthright citizenship) (response to Gabriel J. Chin and Paul Finkelman in this issue, p. 1047)

• Date: 01 April 2024
• Author: Frost, Amanda

TABLE OF CONTENTS
                INTRODUCTION 1178
                I. THE BIRTH OF BIRTHRIGHT CITIZENSHIP 1181
                A. The Civil Rights Act of 1866 1182
                B. The Fourteenth Amendment's Citizenship Clause 1185
                II. THE PARADOX OF UNIVERSAL BIRTHRIGHT CITIZENSHIP AND
                RACIALLY EXCLUSIVE NATURALIZATION 1187
                A. Political Battles 1188
                B. Legal Battles 1189
                C. Immigration Battles 1192
                CONCLUSION 1195
                

INTRODUCTION

In 1895, George Collins was on a crusade against birthright citizenship. (1) Collins was a young, brash California attorney who successfully harangued the federal government into challenging birthright citizenship before the Supreme Court of the United States. The following year he submitted a brief on the issue cosigned by the Solicitor General. (2) In that legal brief, as well as in interviews with a sympathetic press, Collins raised what many considered to be one of the government's strongest arguments: "For the most cogent reasons... we have refused citizenship to Chinese subjects," Collins told the San Francisco Examiner, referring to federal laws that barred naturalization of Chinese immigrants, "and yet as to their offspring who are just as obnoxious, and to whom the same reasons apply with equal force, we are told that we must accept them as fellow citizens... because of the mere accident of birth!" (3)

Under the racist logic of the era, Collins had a point. The Naturalization Act of 1870 permitted naturalization only of Whites and "aliens of African nativity and... persons of African descent," barring all other non-Whites, including Asians, from acquiring citizenship. (4) To avoid any possible confusion on the subject, the 1882 Chinese Exclusion Act expressly prohibited naturalization of Chinese immigrants. (5) Yet the children of Chinese immigrants born in the United States claimed citizenship under the Fourteenth Amendment to the U.S. Constitution--a status entitling them to vote and hold elected office, as well as enter and remain in the United States. (6)

Collins told anyone who would listen that birthright citizenship for the Chinese was illogical and intolerable in a nation that had already decided to exclude them from naturalization. (7) One way to resolve that conflict, Collins and the Solicitor General argued before the Supreme Court, would be to end universal birthright citizenship for the children of immigrants. (8)

In their article, The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a "super-statute" that has shaped not only U.S. immigration law and policy, but also America's conception of itself as a "White nation." (9) From its founding moment, the United States chose to limit citizenship based on race. (10) Even in 1870, at the height of Reconstruction, Congress rejected a proposed amendment by Senator Charles Sumner to make naturalization available to all. (11) Race remained a barrier to naturalization until 1952. (12) Drawing on this history, Chin and Finkelman demonstrate that the Free White Person Clause of the Naturalization Act of 1790 has had an enduring impact on U.S. law, policy, and national identity. (13)

But there is an important wrinkle to this otherwise depressing story: the addition of birthright citizenship to the Constitution in 1868. Just a few years before rejecting Senator Sumner's proposal, Congress codified universal birthright citizenship in the Civil Rights Act of 1866. (14) That same principle was then enshrined in the Fourteenth Amendment in 1868. (15) These new laws established the rule of automatic citizenship for all born on U.S. soil, regardless of their parents' race, ethnicity, or immigration status. (16) As George Collins recognized, universal birthright citizenship was in significant tension with the racially exclusive Naturalization Act. (17)

This Comment explores the conflict between the Naturalization Act's racial restrictions on citizenship (and its proponents' vision of the United States as a White nation) and the Fourteenth Amendment's Citizenship Clause (and its proponents' vision of the United States as a multiracial nation). In important and interesting ways, the Citizenship Clause complicates the story Chin and Finkelman are telling. America has always been a bundle of contradictions, with a paradoxical view of itself as a White European nation on the one hand and a nation of immigrants that eschews bloodline and caste on the other. Those contradictions are on vivid display in the interplay between America's worst impulses, as exhibited by the White supremacist naturalization law, and its better angels, displayed in the multiracial promise of birthright citizenship.

The Citizenship Clause also complicates Chin and Finkelman's claim that the Reconstruction Congress "did not fully accept raceneutral, non-discriminatory legal equality in principle." (18) Chin and Finkelman base this conclusion in part on the Naturalization Act of 1870, in which Congress narrowly rejected Senator Sumner's proposal to make U.S. citizenship available to all races, granting it instead only to Whites and persons of "African descent." (19) Chin and Finkelman further argue that the Reconstruction Congress extended citizenship to Blacks to counter the political power of White Southerners rather than to promote racial equality. (20) The authors are correct that congressional Republicans had pragmatic political reasons for granting citizenship to newly freed slaves, but this does not tell the whole story--a story that includes the constitutional guarantee of universal birthright citizenship.

Part I of this Comment describes how the Citizenship Clause bestowed universal citizenship that extended beyond the newly freed slaves to the children of non-White immigrants. Birthright citizenship provides a counterpoint to the racial bars in the Naturalization Act, demonstrating that--if only fleetingly--the Reconstruction Congress embraced equality for all, including for children of non-White immigrants. Part II describes how the contradiction between the racially exclusive Naturalization Act and the universal Citizenship Clause played out in politics, law, and immigration policy in the following years. For decades, the government tried to reconcile the conflict between these two laws by denying birthright citizenship to non-Whites. (21) Not until 1952 did the pendulum swing the other way, resolving this legal anomaly by eliminating all racial bars to naturalization. (22)

I. THE BIRTH OF BIRTHRIGHT CITIZENSHIP

By the end of 1865, the Civil War was over and the Thirteenth Amendment had abolished slavery. (23) The citizenship status of nearly 4.5 million Black inhabitants of the United States was far from clear, however. (24) In its infamous 1857 decision Dred Scott v. Sandford, the Supreme Court declared that no Black person, slave or free, could ever be a citizen of the United States. (25) That decision remained the law of the land even after slavery had ended. (26)

In the absence of Black citizenship and accompanying rights, slavery in the South was reinstated "in all but name" through the Black Codes restricting every aspect of freedmen's lives. (27) Congress responded by creating the Joint Committee on Reconstruction, consisting of fifteen congressional leaders from the House and Senate. (28) Those men were the impetus behind the Civil Rights Act of 1866, as well as the Fourteenth Amendment to the Constitution, both of which sought to bring an end to citizenship based on race. (29)

Unquestionably, Reconstruction focused on securing the rights of the formerly enslaved, at least in part to counter the political power of the White leaders of the Confederacy. But some members of the Reconstruction Congress had a broader and more idealistic goal: to end caste in America by providing civil and political rights to all, regardless of race or lineage, through universal birthright citizenship.

A. The Civil Rights Act of 1866

The Civil Rights Act of 1866 granted all U.S. citizens the same set of civil rights "enjoyed by white citizens," including the right to contract, to buy and sell property, and to sue and be sued. (30) But the first draft of that law failed to make clear who qualified for citizenship. (31) Then, on Tuesday, January 29, 1866, Illinois Senator Lyman Trumbull rose to his feet to propose adding the following provision to the bill's text: "That all persons of African descent born in the United States are hereby declared to be citizens of the United States." (32)

Trumbull's proposal would have granted citizenship to the 4.4 million Black inhabitants of the United States and their progeny. (33) Left out, however, were all Asians, Arabs, and other non-Whites not of "African descent"--in particular, the small but growing number of children of Chinese immigrants in California. (34) Had it become law, the Supreme Court almost certainly would have interpreted that language to exclude these groups from birthright citizenship.

A few senators quickly objected to Trumbull's amendment. Parroting Chief Justice Taney's Dred Scott opinion, West Virginia Senator Peter G. Van Winkle argued that "persons of African descent... were not counted among 'we the people' who established the national Constitution" and so were "not citizens by birth." (35) Van Winkle also denied that Congress could make new citizens through legislation. (36) Congressional authority to grant citizenship was "one of the gravest subjects that ever could be submitted to the people of the United States," he declared, because "it involves not only the negro race, but other inferior races that are now settling on our Pacific coast"--here, Van Winkle was surely referring to Chinese immigrants--"and perhaps involves a future immigration to this country of which we have no conception." (37)

Trumbull's initial proposed amendment did not apply to the children of Chinese immigrants. But Van Winkle explained that his objection was...