Abstract
In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.
This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.
Finally, we note that from the 1790s to the 1860s there were anti-immigration social movements and political parties (most notably the Know-Nothing Party of the 1850s) that pushed for limitations on the immigration and naturalization of Catholics, Chinese, and others. Everyone in Congress was well of aware of this anti-immigration agitation, and thus Congress was on notice that at some point there might be statutory limits on immigration, and this would lead to unauthorized immigrants living in the United States and having American-born children. Nevertheless, in the face of this history, in 1866 Congress put into the Fourteenth Amendment the iron-clad language that, with the exception of the children of diplomats, “All persons” born in the United States were “citizens of the United States and of the State wherein they reside.”
(Note: To see the original version of this article with citations included, click here.)
Introduction
From the Founding of the United States until 1952, federal authorities often denied or questioned the citizenship of non-white immigrants and their children. Before the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment in 1868, the "rule of law" in the United States was that no one of African descent could be a U.S. citizen.' Even after the adoption of the Fourteenth Amendment there were persistent questions about the citizenship status of Asian immigrants and their American-born children, Puerto Ricans, Mexicans, and Native Americans. Similarly, some now question the entitlement to U.S. citizenship of children of undocumented noncitizens and other immigrants born in the United States. The text of the Constitution seems to plainly grant them citizenship: Section 1 of the Fourteenth Amendment provides 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." Senator Lyman Trumbull, who had drafted the Thirteenth Amendment two years earlier, answered tartly: "Undoubtedly," and no Senator contradicted him." Senator Trumbull's view was consistent with the English tradition of birthright citizenship recognized in country."
The most serious argument that there is less to the Fourteenth Amendment than meets the eye comes from the scholarship of political scientist Rogers Smith and law professor Peter Schuck. In their 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity, they argue that as a republic rejecting the idea of monarchy, membership in the polity - citizenship - must be by agreement of the people.' Under our government, the consent of the people comes through Congress. Of course, the Fourteenth Amendment is an act of the people through both Congress and the States, but they argue that this is insufficient evidence of consent. They assert that in 1868, when the Fourteenth Amendment was ratified, "[i]mmigration to the United States was entirely unregulated," and thus there were no "illegal aliens" for Congress to consider. They further argue that because Congress and the states simply did not even consider the possibility that there might someday be people in the United States whose presence was prohibited by law, the Fourteenth Amendment does not automatically make the American-born children of undocumented migrants part of the political community. Now that we have federal laws restricting immigration and providing for exclusion and deportation, they believe Congress faces an entirely new situation unforeseen by the framers of the Fourteenth Amendment. Accordingly, they argue, Congress has the power, by enacting a statute, to deny citizenship to the children born here of those present without authorization of U.S. law.
Immediately after the publication of Citizenship Without Consent, and regularly since, some conservative politicians and commentators have been captivated by the argument that children of undocumented migrants can be denied citizenship. Most recently, President Donald J. Trump stated: "We're looking at that very seriously, birthright citizenship, where you have a baby on our land, you walk over the border, have a baby - congratulations, the baby is now a U.S. citizen.... It's frankly ridiculous.” While Professors Smith and Schuck "strongly favor even more legal immigration than the U.S. now accepts, and a generous amnesty for those now here illegally, a range of immigration restrictionists and white nationalists have enthusiastically embraced their argument that the Fourteenth Amendment does not provide birthright citizenship for children born in the U.S. if their parents are undocumented migrants.
There have been many critiques of the work of Smith and Schuck. As Neil Gotanda wrote: "Reviewers have critically examined Schuck and Smith's proposal as a question of ethical theory, of political theory, and of social policy. " Professor Gotanda added his own critique,and there have been others since.
A telling objection came from Professor Gerald Neuman who pointed out that, whatever else it did, the citizenship clause unquestionably granted citizenship to the formerly enslaved African Americans born in the United States. As we note later in the Article, the parents of some of those children had been trafficked here in violation of federal laws regulating or prohibiting the slave trade, and were in fact living in the United States in violation of federal law.
Accordingly, whatever else of those children had been trafficked here in violation of federal laws regulating or prohibiting the slave trade, and were in fact living in the "subject to the jurisdiction thereof" might mean, it necessarily included the children of unauthorized migrants.
In response to President Trump's restrictive immigration policies and interest in revisiting birthright citizenship, Professors Schuck and Smith have once again placed their argument before the public and policymakers, and they contend that three decades of scholarly criticism have not undermined their argument. In a Washington Post op-ed they argue:
The 14th Amendment's citizenship clause did not even address, much less resolve, the question of citizenship for the U.S.-born children of undocumented immigrants . .. [because] the federal government was not then restricting immigration. (The U.S. slave trade was banned by this time, but that was not immigration in any sense we think of it today.)
In a longer article in National Affairs, they contend:
In thinking about what the Citizenship Clause's "subject to the jurisdiction" proviso was intended to mean, recall the obvious fact that the category of immigrant parents here in violation of U.S. law simply did not exist at the time. Federal regulation of immigration (other than a ban on the international slave trade, foreshadowed in the original Constitution) did not begin until 1875. Some states had enacted public-health requirements for immigrants, but Congress did not enact significant bans, especially limited quotas, until well into the 20th century.
However, in these works neither Professor Neuman nor Professors Smith and Schuck closely examined the slave trade laws to explore how they operated, and their similarities and differences from "immigration" laws. Nor have they considered early acts which actually prohibited the immigration of free people of African ancestry. This article examines the slave trade laws and those banning black immigrants to challenge the contention that "the category of immigrant parents here in violation of U.S. law simply did not exist at the time" and that the slave trade "was not immigration in any sense we think of it today."
Of course, U.S. laws banning the African slave trade differed in many respects from the much more comprehensive Immigration and Nationality Act currently in effect. Forced and trafficked migrants such as those victimized by the slave trade undoubtedly are in a different position than those who immigrate voluntarily. Yet, there are also similarities between the slave trade laws and modern immigration law. For example, because the coverage of current immigration law extends to involuntary migrants and to trafficked persons, it now applies to enslaved persons. Because the institution of slavery affected the composition of the people of the United States, Professor Rhonda Magee has argued that the slave trade should be understood as part of immigration, even if the trafficked Africans were "unwilling to involuntary migrants and to trafficked persons, immigrants." This Article understands immigration policy as designed to "shape [] the destiny of the Nation" by using legal tools to determine "(1) who may enter the country and (2) who may stay here after entering."
As Part I explains, the legal feature of modern immigration law that seems salient to Professors Smith and Schuck is exclusion and deportation - the decision of Congress that some people are allowed to enter and remain in the United States because of their perceived good qualities or lack of bad qualities, while others are kept out or required to depart. On this basis, the laws regulating and then banning the African slave trade and the entry of free blacks were tools of selective immigration policy just like modern immigration legislation.
Like other immigration laws, the slave trade laws determined who would be allowed to come to the United States, and what would happen to them if they arrived in the country in violation of law. The laws used now ubiquitous methods of immigration control, including interdiction, incarceration, and deportation. Under the Slave Trade Act of 1819, Congress authorized that illegally trafficked slaves be sent, at government expense, to Africa, after 1822 to a settlement created in Liberia, operated by a private organization with extensive governmental connections, the American Colonization Society ("ACS"). This deportation occurred even if the victims of the illegal trade might have preferred to stay in the United States, and even though few or none of the trafficked victims were from Liberia.
Congress purposefully designed these laws to shape the demographics of the U.S. population. In this way, they were akin to laws recognized as immigration regulation such as the Chinese Exclusion Act of 1882 or the Immigration Act of 1924, with its highly restrictive National Origins Quota System, and for that matter the Immigration and Nationality Act in force today.
Part II offers an additional reason to show why the drafters of the Fourteenth Amendment cannot be imagined to have been ignorant of, or unaware of, the possibility of undocumented migration. Immigration restriction of free people from Europe and China had been, for decades, a political issue in the states and Congress. For its part, the federal judiciary had long made clear that the government could regulate immigration, and had the power to ban or deport undesirable noncitizens.
Because the slave trade laws (including the 1803 law which prohibited bringing free people of color into states prohibiting their entry) regulated immigration, Professor Neuman's argument about the slave trade is conclusive. Congress had indeed identified a category of people who were not allowed to be here, and who could be deported under federal law if found in the United States. Nevertheless, through the Fourteenth Amendment, Congress made the children of illegally imported slaves and free blacks U.S. citizens if born in the United States. Accordingly, any statutory or regulatory attempt to deny citizenship to the children of unauthorized migrants would be unconstitutional because of the decision of the enactors of the Fourteenth Amendment to grant citizenship to the children of foreign born people who were illegally in the United States in 1868.
I. REGULATION OF MIGRATION OF ENSLAVED AND FREE PERSONS OF AFRICAN ANCESTRY
Two generations of laws regulated the African slave trade. They illustrate how the suppression of this trade became a form of modern immigration law. The Constitution forbade a federal ban on importation of enslaved persons to the United States until at least 1808, so the first set of laws, passed between 1794 and 1803, regulated the trade by prohibiting American investors, sailors, or ships from participating in the trade to or between foreign countries, but not to the United States itself. An act of 1803 also made it a federal offense, under some circumstances, to bring people of color into the United States. This law is a “smoking gun,” demonstrating that before 1868 Congress has indeed regulated immigration and prohibited some classes of free people from being brought to the United States. Starting in 1807, the second set of laws absolutely prohibited the importation of slaves to the United States and continued the ban on U.S. residents and citizens participating in the African slave trade to other countries. These laws did not overrule or repeal the 1803 law prohibiting free blacks from coming into the United States under some circumstances. Both sets of laws carried out a federal policy of limiting migration of people of African ancestry into the United States.
The earliest laws regulating the African slave trade were designed to prevent American participation in the African and Atlantic slave trade using such techniques as asset forfeiture and criminal penalties. However, these laws differed from modern immigration laws in that they did not direct the disposition of the enslaved persons involved. The first statute regulating the slave trade, passed in 1794, prohibited U.S. citizens and residents from fitting out or otherwise preparing vessels for the slave trade, investing in the trade, or commanding slave trading vessels. Because the Constitution protected the right of states to import slaves until at least 1808, the law did not actually prohibit the importation of slaves into the United States, instead focusing on the foreign slave trade. However, at the time every state either prohibited the slave trade outright or taxed imported slaves so heavily that no one could profitably import them into the United States. Thus, the 1794 law prohibited U.S. citizens or residents from building or outfitting ships for the slave trade, operating them, or taking enslaved persons “to any foreign country” or “from any foreign kingdom, place, or country. . . to any foreign country, port, or place whatever.” The 1794 Act did not dictate the disposition of enslaved persons who were illegally trafficked but rescued or captured.
An 1800 amendment clarified some issues, but not with respect to immigration. It provided that the offending vessel and its contents “other than slaves” were forfeited if seized by a commissioned vessel, and that the former owners “shall be precluded from all right or claim to the slaves found on board such vessel.” The law also prohibited American citizens and residents from serving on slave ships sailing under any flag or registry. But the statute did not address who obtained the property interest in the Africans themselves or whether the enslaved persons became free.
In what became a common feature of the slave trade laws, the 1800 statute regulated African migration without reference to slave status. It provided that “nothing in this act contained shall be construed to authorize the bringing into either of the United States, any person or persons, the importation of whom is, by the existing laws of such state, prohibited.” At the time every U.S. state prohibited the importation of slaves. Thus, under this law, if a U.S. naval ship intercepted a slave ship owned by Americans or built or “fitted out” (to use the language of the statute) in the United States and sailing under a foreign flag, the naval vessel could bring the ship to the United States, but not, presumably any slaves on it. What would happen to the illegally transported Africans is, again, unclear.
An important 1803 statute indirectly regulated the slave trade. It provided that no ship or person “shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of colour, not being a native, a citizen, or registered seaman of the United States” into any port “which port or place shall be situated in any state which by law has prohibited or shall prohibit the admission or importation of such negro, mulatto, or other person of colour.” On its face, the law covered both free and enslaved persons, and by including other “person[s] of color” would have applied to people from Asia, Pacific Islanders, and native peoples from North and South Americas not born in the United States. U.S. Customs and Revenue officers were “enjoined vigilantly to carry into effect the said laws of said states, conformably to the provisions of this act.”
This law in part assisted state slave trade prohibitions. When the law was passed, all states prohibited the slave trade, and thus under this law the federal government could help enforce state bans. However, the law also applied to free blacks. The law was written in response to the Haitian revolution and the influx of free people of color fleeing the newly independent former French colony. In January 1803, North Carolinians had petitioned Congress to prevent the immigration of free black Haitians. While the Constitution prohibited federal interference (until 1808) with importation or migration of persons that states desired, nothing, apparently, denied Congress the power to help enforce state exclusions. Thus, the 1803 act was passed to “prevent the importation of certain persons into certain states, where, by the laws thereof, their admission is prohibited.” Those “certain persons” were free blacks. By the eve of the Civil War, most slave states, as well as the free states of Indiana, Illinois, and Oregon, flatly refused to allow the immigration of free blacks, either from overseas or from within the United States. Accordingly, Congress in effect banned some immigration as early as 1803. While some scholars and historians contend there was no U.S. immigration policy until after the Civil War, that is true only for white immigrants. Starting in 1803 federal authority would regulate the migration of persons of African descent and “persons of colour.”
In 1807, Congress moved beyond assisting the states, and discouraging the international slave trade, imposing an outright prohibition on the importation of “any negro, mulatto, or person of colour, with intent to hold, sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour” as of January 1, 1808. However, it did so through an odd statute that, though inexpensive to enforce, still functionally permitted continued importation of enslaved persons. While the Act provided that illegal importers would lose their right “to any negro, mulatto, or person of colour,” it also provided that the illegally imported Africans would be “subject to any regulations . . . which the legislatures of the several states or territories at any time hereafter may make, for disposing of any such negro, mulatto, or person of colour.” Accordingly, slave states could benefit from the slave trade by choosing to keep the illegally imported Africans as slaves. Furthermore, the states could sell the illegally imported African slaves for the benefit of the state, which also had the added advantage of increasing the slave population in the slave states while simultaneously contributing to the state coffers. The statute provided that federal custody would be transferred “to such person or persons as shall be appointed by the respective states, to receive the same” or, “if no such person or persons shall be appointed” the Africans would be transferred “to the overseers of the poor,” and notice given “to the governor or chief magistrate of the state . . . that he may give directions respecting such negroes, mulattoes, or persons of colour.” An 1818 revision clarified that states could pass good title to illegally imported enslaved persons seized and sold under state laws. Ironically, then, a law ostensibly designed to suppress the slave trade, in fact facilitated the sale of illegally imported slaves, allowing them to remain in the United States.
The structure of slave trade suppression as of 1818 as immigration law in the modern sense is debatable. Trafficked persons who ended up in the slave states were turned over to the state governments, and not allowed to leave the United States. In this way, they were in the same position as U.S.-born enslaved persons. The reason both groups were oppressed was the existence and protection of the institution of slavery, not by any legal structure that looks like immigration policy — if it were not for slavery, the trafficked persons could stay or go as they chose. In any event, under this regime, it is plausible to argue that the slave trade laws — to this point — were not deportation laws because the illegally enslaved and imported persons were not merely permitted, but, under the laws of the southern states, affirmatively required to remain in the United States, in bondage. However, the 1803 law still prohibited the importation or migration of free blacks and other “people of colour” into the United States. Anyone interdicted under that law would not be enslaved. People who evaded that law and remained in the United States would in fact have been the equivalent of undocumented aliens today.
Policy regarding importation into free states was equally muddled. No one involved in the illegal trade would have intentionally trafficked Africans to free states, for fear that the enslaved persons would be freed and the traffickers would more likely be prosecuted. However, the 1807 law made it a crime for a ship to “hover” off of the coast of the United States with intent to land a cargo of illegally imported Africans. A ship hovering near the United States, or one interdicted anywhere on the Atlantic, might have been taken to a free state port and any Africans on these ships presumably would have been set free according to northern state law. Neither the 1807 law nor the 1818 law indicated what would happen to them under such circumstances. However, if they remained in the United States because a northern state released them from custody, they would have been living in the country contrary to federal law.
In 1819, Congress dramatically changed course, implementing a new uniform national policy with respect to illegally imported enslaved persons, using what are recognizable as modern immigration control methods. First, in an early example of the now-familiar immigration control method of interdiction, the President was authorized to capture slave ships on the high seas by ordering “any of the armed vessels of the United States, to be employed to cruise on any of the coasts of the United States, or territories thereof, or of the coast of Africa, or elsewhere.” Seized ships and their contents were subject to forfeiture; to encourage energetic enforcement, the law provided that the proceeds from the sale of such ships “shall be divided equally between the United States and the officers and men” of the ship interdicting the slaver.
The law also changed the disposition of enslaved persons: the president was now
authorized to make such regulations and arrangements as he may deem expedient for the safe keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour . . . [a]nd to appoint a proper person or persons, residing upon the coast of Africa, as agent or agents for receiving the negroes, mulattoes, or persons of colour.
Although histories of deportation do not always categorize it as such, this law is an early example of implementation of the immigration control technique of deportation.
The 1819 law also provided for deportation of illegally trafficked Africans who were already in the United States. Again, to incentivize enforcement, the law rewarded informants. If “any citizen, or other person” reported to the U.S. attorney that Africans had been illegally imported, “it shall be the duty of the said attorney forthwith to commence a prosecution.” Upon finding a violation, “the court shall direct the marshal of the said district to take the said negroes, mulattoes, or persons of colour, into his custody, for safe keeping, subject to the orders of the President of the United States.” While the statute provided that the fate of these individuals was “subject to the orders” of the President, it was clear that the President was to deport them. Attorney General William Wirt opined that the central power granted the President by the Act was “to send such negroes, &c., out of the limits of the United States to Africa or elsewhere.” The Attorney General further asserted that the deportation power in the 1819 Act applied retroactively to persons trafficked into the country before the Act, including those who could have been turned over to state authorities under earlier law, but had not yet been sold or disposed of by the state. Illegally imported Africans were subject to deportation without limitation of time. As U.S. District Judge William Giles Jones explained in 1860:
The law also properly provides for his removal out of the country as one of the means necessary and proper to carry out the execution of the power to prohibit importation. . . . [Even after] he has passed out of the possession or control of the importer or his agents or employees, and has been mingled with the mass of the population in a state . . . the general government may remove him out of the country.
Was this deportation in the modern sense? One argument that it is not, might be that returning kidnapped Africans to Africa should be understood as a kindness not a punishment. It could be contended that the 1819 Act should be understood as offering repatriation — a free trip home — rather than inflicting deportation, which the modern Court has recognized “may result in the loss ‘of all that makes life worth living.’” What is critical, however, is the deprivation of freedom, the absence of choice, and the fact that these deportations did not take these Africans back to their homes. The law required that the Africans be held in custody while awaiting deportation; while “guests” of the federal government, the Africans could be required to work (that is, be treated as slaves doing uncompensated labor), and U.S. Marshals in fact often rented them out.
In addition, the ships on which Africans would return, and the Liberian settlement (and after 1847 the Republic of Liberia) where they would be delivered, had mortality rates so dreadful that reasonable people might have chosen to take their chances in the United States, no matter how difficult it might it have been for them to adjust to a new culture, with a new language, and different climate. Some Africans unlawfully trafficked into the United States might have developed personal connections that would have led them to elect to stay. Professors Schuck and Smith have asserted that at this time U.S. borders were open to all immigrants, and there is much truth to that at the federal level for white people from Europe or of European ancestry. But this was not true with respect to blacks at the federal level and there were also state regulations limiting the migration or immigration of free blacks. As was the case with the 1803 law, under the 1819 law Africans were not free to enter and remain in the United States. Under the 1819 law (and the 1803 law) the borders were clearly not open to Africans, and if brought to the U.S. on slave ships or on merchant ships — they had to go. Finally, it is important to understand that the destination for these deportations was Liberia, even though virtually no illegally trafficked Africans came from Liberia. This would also have been true for people trafficked to the United States from Brazil, Cuba, or some other slave jurisdiction in the Western Hemisphere. Thus, enslaved persons were removed from the U.S., but emphatically not repatriated to their homelands. There was clearly no “act of kindness” begin offered to Africans brought to the United States. The unwelcome nature of deportation is illustrated by the most famous case under the 1819 law, United States v. The Amistad, which involved a Spanish ship that was transporting illegally imported Africans from one part of Cuba (where they had been landed and sold), to another part of Cuba. The Africans revolted, killed the ship’s crew, and tried to force the two remaining Spaniards on board (their purchasers) to sail to Africa. The Spaniards sailed east during the day (under compulsion from the Africans) but at night went north and west, hoping to reach the U.S. South. Instead, they reached Long Island Sound, where the U.S.S. Washington, a revenue cutter interdicted the Amistad, boarded it, and took it to New Haven, Connecticut. Many parties claimed the ship or its cargo, including local fishermen who first boarded the ship, the crew of the U.S.S. Washington, under the command of Lt. Thomas R. Gedney, who claimed salvage rights, the two Cubans who had bought the Amistads (as they came to be called at the time) in Cuba, and the Spanish government. In addition, lawyers representing the Africans themselves, argued that the Amistads were not “cargo” but free people who were entitled to their liberty. The United States entered the case, initially wanting to try the Amistads for murder because they killed the Amistad’s captain and crew, and later demanding the restoration of the ship and its cargo to Spain, or, in the alternative “demanding that the negroes be delivered up to the president to be transported to Africa.”U.S. District Judge Andrew Judson threw out the murder charges and ultimately agreed that the 1819 act “renders it essential that all such Africans as these should be transported, under the direction of the president of the United States, to Africa,” and so ordered.
On appeal by the United States, the Supreme Court took a different view. The United States argued that under a treaty with Spain, the nation was obligated to return the “property” of the Spanish residents of Cuba to that Spanish colony. The Amistads did not want deportation, but, rather, they wanted to return to their homeland in Africa (not Liberia) as free people. The U.S. Supreme Court noted that at trial through counsel they “filed an answer, denying that they were slaves . . . or that the Court could, under the Constitution or laws of the United States, or under any treaty, exercise any jurisdiction over their persons, by reason of the premises; and praying that they might be dismissed.” At the Supreme Court, the Amistads continued to insist that they were “now entitled to maintain their freedom.” This position was in part strategic, because the Van Buren administration argued that they were legally the property of Spanish citizens and should be returned to their Cuban “owners.”
Justice Joseph Story for the Court upheld the District Court’s finding that under Spanish law the Amistads were never legally held as slaves in Cuba, and thus they could not be returned to the Cubans claimants. However, Story also found the deportation provision of the 1819 Act inapplicable because The Amistad did not enter U.S. jurisdiction as a slave trader, but instead arrived as a liberated vessel: “When the Amistad arrived she was in possession of the negroes, asserting their freedom; and in no sense could they possibly intend to import themselves here as slaves, or for sale as slaves.” Accordingly, the Court revised the judgment below. Speaking for the Court Justice Joseph Story wrote:
[S]o far as it directs the negroes to be delivered to the President, to be transported to Africa, in pursuance of the act of the 3d of March, 1819; and, as to this, it ought to be reversed: and that the said negroes be declared to be free, and be dismissed from the custody of the Court, and go without day.
While upholding the freedom of the Amistads, this left them in limbo. Under U.S. law they could not become naturalized citizens and they wanted to return to their homeland in Africa. But Story’s decision meant that the Amistads could depart only after their abolitionist supporters were able to raise funds for their return. However, unlike Africans deported to Liberia under the 1819 law, the Amistads actually went home.
Reflecting continuing concern with immigration policy, subsequent treaties and legislation further refined the disposition of rescued people. Under the Webster-Ashburton Treaty of 1842 between the United States and Great Britain obligated each party to maintain a fleet to suppress the slave trade and to cooperate in that effort, but the treaty contained few details of how this process would work. That treaty was supplanted by a comprehensive agreement in 1862, which established British-American “Mixed Courts of Justice” to dispose of seized vessels at Sierra Leone, the Cape of Good Hope, and New York. A key provision granted freedom to those found by the Mixed Courts of Justice to have been illegally trafficked.
In 1860, Congress strengthened its interdiction policy, authorizing the President to enter into a contract with an agency “to receive from the United States through their duly constituted agent or agents, upon the coast of Africa, all negroes, mulattoes, or persons of color, delivered from on board vessels seized in the prosecution of the slave trade, by commanders of the United States armed vessels.” In addition, the President was authorized to order naval commanders “to proceed directly to the coast of Africa, and there deliver . . . all negroes, mulattoes, and persons of color.” An 1862 statute gave the President the same powers with respect to governments having possessions in the West Indies.
The policy culminated in 1870, when an amended Anglo-American treaty provided that liberated individuals were to be brought “to the nearest British authority” rather than New York or any other U.S. port. No longer would the United States take responsibility for the enslaved persons wherever they might be seized on the high seas; no longer would there be any risk that Africans or their descendants living in New World slave jurisdictions might somehow wind up in the United States. This new policy reflected the fact that slavery had been abolished in the United States by the Emancipation Proclamation, the United States Army, and the Thirteenth Amendment, and thus the United States was less actively interested in the African slave trade. By this time slavery in the Western Hemisphere only existed in Cuba, Puerto Rico, and Brazil.
Efforts to suppress the slave trade and remove enslaved persons from the United States were prominent political and social issues in the years before the enactment of the Fourteenth Amendment; members of the 39th Congress would certainly have known of the related proposed legislation and the highly publicized captures and prosecutions. As a matter of history, a political movement in the 1850s proposed reopening the slave trade, and there were widely publicized captures and deportations from the United States in the 1850s and into the 1860s. Like every other reader of newspapers and magazines, members of Congress would certainly have known of the Wanderer, a slave ship which landed off of the Georgia coast in 1858 with more than 400 Africans, who were then smuggled into the United States. Similarly, they would have known of the case of the Echo, whose crew was the subject of an unsuccessful federal prosecution in 1858. After the capture of the slave ships William and Wildfire; the liberated Africans were held at Key West by the U.S. Marshal; officials pleaded with Congress and the President for an appropriation of funds for their removal in 1860. The Clotilda landed about 110 bondspeople in Mobile, Alabama in 1860 to national publicity; in vain, the U.S. Attorney and the Attorney General sought to recapture them.
There were also prominent prosecutions of slave traders. Senators and representatives would have likely been aware of Justice James Wayne’s Charge to the Grand Jury in Savannah, in 1859, concerning the smuggling of slaves into the United States. Although a slaveholder from Georgia, Justice Wayne remained loyal to the Union during the Civil War. In 1865, he was part of the unanimous Court upholding various convictions of slavers. In February 1862, the United States executed Nathaniel Gordon for slave trading. This action by the Lincoln administration was the first capital sentence under an 1823 statute deeming slave trading “piracy,” punishable by death. The Supreme Court reviewed the case, but even the notoriously pro-slavery Chief Justice Roger B. Taney acquiesced in Gordon’s execution. Everyone in Congress in 1866, when the Fourteenth Amendment was written, would have been fully aware of this execution and of the problem of slave smuggling.
Illustrative of the knowledge of the illegal trade, President Abraham Lincoln discussed suppression of the slave trade in each of his four annual addresses to Congress. Other formal federal attention to the illegal importation of Africans into the United States in the years immediately preceding the writing and adoption of the Fourteenth Amendment included an Attorney General opinion in 1859, legislation in 1860, a treaty and two statutes in 1862, a treaty in 1863, and a statute in 1864 prohibiting the coastwise slave trade.
In addition, Congress appropriated funds for slave-trade suppression on the high seas in 1859, 1860, February and March 1861, 1862, 1863, 1864, January and December 1865, 1866, 1867, and 1868. Congress further appropriated funds specifically for domestic law enforcement actions to suppress the slave trade in 1862, 1863, 1864, and 1866. Given all of these acts passed by Congress, and the prominent cases such as that involving the Wanderer and the execution of Nathaniel Gordon, it is not plausible that slave trade enforcement — and the presence in the nation of Africans who were not legally allowed to be in the country — could have gone unnoticed or unconsidered by Congress when the Fourteenth Amendment was being drafted and enacted into law.
An additional factor makes clear that the deportation provisions of the 1819 Act were about the composition of the population of the United States, as well as about humanitarian opposition to the African trade. First, “[t]he 1819 Slave Trade Law was the culmination of ACS lobbying, which had begun with their petition in January 1817.” The American Colonization Society was a private organization which received support from the federal and state governments. Members, at various times, included several presidents and future presidents, including James Madison, James Monroe, Andrew Jackson, John Tyler, Millard Fillmore, and Abraham Lincoln. Supreme Court Justice Bushrod Washington was the president of the national organization and Chief Justice John Marshall led the Society in Virginia. Other jurist- members included Chief Justice Roger B. Taney, Justice James Moore Wayne, Justice Peter V. Daniel, Judge William Cranch, the Chief Judge of the U.S. District Court in Washington, D.C., and U.S. District Judge for the District of Connecticut Andrew T. Judson, who presided over the Amistad trial. Other prominent members included Charles Carroll of Carrollton (a signer of the Declaration of Independence), Harvard President Edward Everett (also Vice Presidential candidate of the Constitutional Union Party in 1860), Senator Theodore Frelinghuysen (also Whig Vice Presidential candidate in 1844), Daniel Webster, Stephen A. Douglas, Henry Clay, and Francis Scott Key. Professor Nicholas Wood reports that one step in the passage of the 1819 slave trade law was ACS vice president Henry Clay submitting a petition requesting action to the Speaker of the House of Representatives, Henry Clay.
The settlement the ACS proposed to build was primarily for free African Americans and recently manumitted slaves. Accordingly, their proposed disposition of liberated slaves was designed in part to shape the population of the U.S. as well as to return illegally imported Africans to their home continent and recently manumitted slaves to the continent of their African ancestors. The House Committee report responding to the memorial of the ACS referred to the slave trade as “the crime of Europe, the scourge of Africa, and the affliction and disgrace of America.” The word “affliction” was not a slip. Justice Wayne, another ACS vice president, later said that government support for the mission of the society was appropriate, because “there is a great constitutional conservative obligation upon the National Government to remove a national evil, when it presses upon the general welfare of the United States.” Chief Justice John Marshall begged the Virginia legislature to support sending blacks to Africa, because of the “urgent expedience of getting rid in some way, of the free coloured population of the Union.” Marshall declared that free blacks in Virginia were worthless, ignorant, and lazy and that in Richmond half the free blacks were “criminals.” He argued that the entire nation “could be strengthened” by the “removal of our colored population.” He believed the “danger” from free blacks “can scarcely be estimated.” The framers of the 1819 law believed it was best for the free African Americans to have their own colony and for illegally imported Africans to be returned to their home continent. These members of Congress also believed that removing free blacks and Africans (other than those held as slaves) was best for the white people of the United States.
In sum, examination of federal statutes shows that for more than half a century before the Fourteenth Amendment, Congress regulated immigration to shape the racial demographics of the country. People prohibited from entering based on those laws were sometimes deported, such as those freed from the slave ships Echo and Wildfire. Others, however, remained (often illegally) in the United States and had children. For example, “many descendants of the Wanderer’s captives still live on St. Simons Island, Brunswick, and Darien, Georgia.”
Federal efforts to find and deport the Clotilda survivors failed, and after Emancipation, they founded a community in Alabama called Africa Town where some of their descendants reside to this day, while others live in other parts of the United States. Calculations vary as to how many arrived between 1808 and 1866. Although some died or left the United States, 1,984 persons of color born in Africa were counted in the 1870 Census (out of 4.8 million overall); this is probably an undercount, either because some wanted to “conceal their origin” as “illegal immigrants” or because “the Republican administration of Ulysses S. Grant sought to minimize the illegal slave trade by undercounting the Africans.” The SlaveVoyages project, funded by UNESCO, estimates that between 1808 and 1875, 13,151 enslaved persons embarked to the United States, and 10,941 disembarked.
This history demonstrates that there were clearly “illegal aliens,” both free migrants banned under the 1803 law and illegally imported slaves, in the United States before and during the consideration of the Fourteenth Amendment. In 1898, the Supreme Court held: “No one doubts that the amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been.” This underscores that three decades after the ratification of the Amendment, American leaders understood that after the Civil War ended there were people in the United States who had been born in Africa, even though the African slave trade had been illegal for almost two generations. On this basis, when Congress wrote the Fourteenth Amendment and the states ratified it, the framers and ratifiers knew that they were making the children of unauthorized migrant citizens of the nation.
II. FEDERAL IMMIGRATION REGULATION AT THE TIME OF THE FOURTEENTH AMENDMENT
In addition to illegally imported slaves, Congress knew that there could be other people in the United States in violation of the law. Exclusion and deportation proposals having nothing to do with slavery received political consideration in the decades before enactment of the Fourteenth Amendment, and many court decisions made it clear that the government had the power to regulate immigration beyond the slave trade.
During the nineteenth century immigration regulation was often a significant political issue, and all members of Congress in 1866 would have known this. In the 1830s and 1840s there were important anti-immigration parties, and their members served in Congress, in state legislatures, and as governors. Starting in the 1840s various nativist political parties pushed for bans on certain classes of immigrants, especially Roman Catholics. In 1844 James Harper, the candidate of the American Republican Party (later renamed the Native American Party) was elected mayor of New York on an anti-Catholic, anti-immigration ticket. In Philadelphia, Lewis Charles Levin won a seat in Congress on a similar platform, as a candidate of the American Party. Starting in 1852 a broad spectrum of people in California, including Governor John Bigler, pushed for limitations or bans on Chinese immigrants, while also calling for special taxes to be imposed on Chinese immigrants already in the state. In 1854, the American Party, better known as the Know- Nothing Party, won control of a number of state legislatures and gubernatorial seats on an anti-Catholic, anti-immigrant platform.184 In 1856, former president Millard Fillmore won 21.5% of the popular vote for president on the American Party (Know-Nothing) ticket. His platform strongly discouraged immigration, especially for Catholics. Most northern Know-Nothings eventually abandoned their anti- immigrant views and joined the Republican Party after 1854. Thus, when Republicans wrote and passed the Fourteenth Amendment, they were fully aware of the possibility that there might someday be a ban on legal immigration for select groups, just as Congress had restricted immigration from Africa in 1803. These proposals were not simply fantasy or nonsense which were beyond the constitutional power of Congress to enact. Court decisions recognized congressional authority to regulate immigration. In 1800, Justice William Cushing asserted that “[t]he right to confiscate and banish, in the case of an offending citizen, must belong to every government.” The Alien Friends Act established registration rules for immigrants, with penalties for those who did not register. The Alien Enemies Act, provided for the deportation of citizens of enemy nations, without any proof of illegal conduct on the part of the noncitizen. While the act does not prohibit immigration of alien enemies, the implication is, especially when connected to the registration requirements of the Alien Friends Act, that such immigration would have been unlawful and led to immediate deportation. Thus, in 1817 when Justice Bushrod Washington analyzed the Alien Enemies Act of 1798, he gave unquestioned support for federal authority to deport noncitizens. Under both laws, and Justice Washington’s opinion, there could have been immigrants living the United States who had evaded deportation and were illegally still in the United States. Any children they had would be children of “illegal aliens” born in the United States. Shortly before the Civil War, the Supreme Court again reminded the nation that banishment was a permissible aspect of national sovereignty and could lead to the illegal return of banished people. At the time the states were considering the Fourteenth Amendment, the Supreme Court also discussed banishment. Any banishment would of course require some sort of interior enforcement. While there was debate over whether the power to exclude and expel rested with the states or with the general government, there was little question that it resided somewhere in U.S. law. Accordingly, it was clear that some noncitizens might be in the United States and its territories without permission. Certainly, that would have been the status of enemy aliens who remained in the United States after they were ordered to leave under the Alien Enemies Act of 1798.
In the 1830s, New York passed immigration restrictions which the Supreme Court upheld in Mayor of New York v. Miln, ignoring the obvious Commerce Clause issues by creating a notion of state “police powers” which allowed for immigration regulations. In 1849, the Supreme Court recommended that Congress regulate the burden of foreign immigration.
During this period Congress received many petitions requesting immigration bans. One presented by Henry Clay (who also supported colonization free blacks in Africa), warned that “[a] flood of foreign Catholics, guided by crafty and zealous priests, are ominously pouring into our country.” In 1844, James Harper won the New York City mayoralty as the candidate of the anti-immigrant American Republican Party. Six members of the party won seats in Congress. The party renamed itself the Native American Party and was also known as the American Party. It fizzled out in a few years, but at least one member, Lewis Charles Levin of Philadelphia, held his seat until 1851. In the mid-1850s the anti-immigrant Order of the Star Spangled Banner, better known as the Know-Nothing Party, and officially on the ballot as “The American Party,” dominated several state legislatures and won seven governorships. The Speaker of the House of Representatives after the 1856 election was a Know-Nothing, and that year, Millard Fillmore, the Know-Nothing presidential candidate, running on a viciously anti- Catholic and anti-immigrant platform won 21% of the popular vote and eight electoral votes.
As we noted above, a significant portion of the Republican Party, which had only come into existence in the mid-1850s, had come out of various anti-immigration parties. By the end of the Civil War most Republicans had abandoned their nativism, and most party leaders, like Lincoln, Seward, Chase, and Grant, had always opposed it. The importance of immigrants to the Union cause in the Civil War undermined nativist sentiment in the Republican Party. About a quarter of all U.S. soldiers were immigrants and nearly 20% more had at least one foreign born parent. Prominent immigrant generals, like Franz Sigal, Carl Schurz, and Friedrich C. Salomon, and the service of various German, Irish, and other immigrant regiments, made it impossible for Republicans to oppose immigration, at least from Europe. But in 1866, when Congress debated and passed the Fourteenth Amendment, everyone in the House and the Senate understood the potential for a nativist resurgence, and the Republican leadership understood that some Party members were still hostile to immigration.
The potential for such a resurgence was clear during some of the debates over the Amendment. When Congress debated the Fourteenth Amendment, there was already a strong movement in California, Nevada, and Oregon to deny citizenship to the American-born children of Chinese immigrants. During the debates over the Fourteenth Amendment, California Congressman William Higby argued the Chinese were “a pagan race” and said, “You cannot make good citizens of them; they do not learn the language of the country.
In sum, even apart from the slave trade laws, given the persistent recurrence of immigration restriction demands since the 1830s, the passage of state restriction laws like the one at issue in Miln, and the success of some nativist politicians, the possibility of immigration restriction and deportation was plain. It is simply not plausible that the enactors of the Fourteenth Amendment overlooked the possibility that they were writing an amendment that might well affect deportable noncitizens and their children born in the United States.
III. WERE ILLEGALLY IMPORTED PERSONS NATURALIZED SUB SILENTIO?
After reading an earlier draft of this Article, Professor Smith proposed that unlawfully imported Africans were implicitly naturalized by the Fourteenth Amendment. This could explain why there were no deportations of members of this group. Even if the unauthorized migrants were implicitly naturalized sub silentio, then when the Fourteenth Amendment granted citizenship to all persons born here, the framers of the Amendment were still granting citizenship to people whose parents were deportable when those children were born. Yet, under the theory set out in Citizenship Without Consent, if the parents were naturalized sub silentio, it could be argued that the Fourteenth Amendment granted citizenship only to the children of people who, at the time of the enactment of the Fourteenth Amendment, had been made part of the political community, whatever their status before.
There are many problems with this contention. First, assuming that Congress and the states took this momentous step without mentioning it, the theory set out in Citizenship Without Consent that undocumented migrants were unknown to Congress is refuted. Clearly, if Congress knew about the unauthorized migrants, and regularized their status sub silentio in the Fourteenth Amendment, then Congress did contemplate unauthorized migrants when it enacted the Fourteenth Amendment. Thus, Congress was putting no limits on such grants of citizenship in the future under the Amendment they adopted.
There is a second problem. The literature does report naturalizations of trafficked persons, such as some of the survivors of the Clotilda. The lack of naturalizations may be a product of their numbers — perhaps as few as 2,000 in 1870, and the national dispersion of naturalization records, which are scattered in every state and federal courthouse for the period before 1906. This theory also conflicts the actual language of the Amendment. Congress might easily have granted citizenship to all “former slaves.” But Congress did not say this. Congress clearly excluded from Fourteenth Amendment citizenship those few slaves who were not born in the United States, but clearly included their American-born children. It is difficult to interpret the clear language — “born” in the United States — to mean “born in the United States or elsewhere.”
In addition, Professor Smith’s argument is fatally inconsistent with congressional drafting and the Supreme Court’s interpretation of the naturalization laws. Since 1795, federal law has provided that a foreign- born noncitizen may become a citizen by complying with the naturalization laws “and not otherwise.” For its part, the Supreme Court has interpreted the Fourteenth Amendment as providing for citizenship only by birth in the United States. The only other way to become a citizen is by satisfaction of the terms of a group or individual naturalization statute. Even when the Supreme Court has held naturalization laws unconstitutionally discriminatory, its remedy has been to deny citizenship to those under the favorable parts of the laws rather than to grant citizenship to those whom Congress has denied citizenship. The bottom line is that citizenship other than that granted by birth in the United States or compliance with a law passed by Congress is to many people a morally compelling idea. Thus, for example, people have argued that certain foreign-born children of U.S. citizens, or people born in a territory under U.S. jurisdiction but deemed “unincorporated” should be considered citizens at birth. A flexible, equitable source of citizenship, independent of the Constitution or statute, or, alternatively, liberal interpretation of naturalization statutes, would be humane. But Congress and the Supreme Court have uniformly rejected the idea of citizenship other than through birth in the United States proper, or as granted by an act of Congress.
A much simpler set of explanations resolves the absence of deportations after the Civil War. There is also an obvious political reason for the absence of deportations. The Civil War had been fought over slavery. Slavery was the motivation for secession and by the end of the War complete abolition was the goal of the Republican Party, and even some northern Democrats. More than 200,000 people of African ancestry served in the U.S. Army and Navy, and helped defeat the Rebellion. Tens of thousands of others worked as civilian employees for the military. It was simply inconceivable, after this history, that the victorious supporters of the Union would have sought to expel Africans who were illegally in the United States, especially since some of them and their children had probably contributed to the defeat of the Confederacy and the preservation of the Union. But if the actions of Congress to reconsider the general status of African Americans under law made deporting even a handful of them politically impossible, tolerating their presence in the United States gave them no vested legal right to remain.
Because of these political realities, Congress appropriated no funds for deportation. After passing the Fourteenth Amendment and sending it on to the states, Congress appropriated no funds, as it had in 1862, 1863, 1864, and 1866, to support domestic judicial enforcement of the slave trade laws. To be sure, Congress continued to legislate and appropriate to suppress the slave trade on the high seas and off the coast of Africa. But in the United States, the general project of colonization of Africans was winding down. In 1865, the American Colonization Society received its last federal funding, an appropriation for past services in Liberia in the grand sum of $6,962.50. In 1867, the House rejected a proposed $50,000 appropriation for the ACS by a vote of seventy-seven to twenty-three. The ACS memorialized Congress in 1868 and 1869 for additional funds, with emphatic lack of success. Colonization, at least mandated or facilitated by the federal government, was a spent force.
In 1870, people of African birth or ancestry became eligible for naturalization, at least in retrospect raising a serious question of whether those who wished to stay continued to be deportable, practically or legally. Congress repealed the deportation provision in 1874 with the enactment of the Revised Statutes of the United States, the first codification of U.S. law, which carried forward the prohibition on the slave trade basically as it had existed before, employing fines, forfeiture, criminal penalties, interdiction, and requiring custody and deportation of those found on the high seas. But there was no equivalent in the Revised Statutes to Section 4 of the 1819 statute, providing for deportation of those found in the United States. Federal immigration policy had changed, such persons were thereafter allowed to remain in the United States, just like every other noncitizen who came to the United States in that period. Regarding naturalizations, some are reported in the literature; among eight Clotilda survivors, for example. In addition, Congress authorized naturalization of persons of African nativity and descent only in 1870; before that, it was clear enough that naturalization of blacks was unauthorized. A well-established doctrine explains the lack of naturalization of these Americans thereafter.
In the years immediately preceding the adoption of the Fifteenth Amendment in 1870, African Americans, who had always voted in some northern states, voted in most of the former Confederate states under the protection of the U.S. Army as part of military reconstruction; the 1867 voter registers do not provides ages or dates of birth for registered voters, but they suggest the possibility of the registration of a number of Clotilda survivors. Today, in 2020, federal law makes voting by a noncitizen a ground for deportation. In the 19th Century, however, under a broadly accepted doctrine, casting a ballot was presumptive evidence of citizenship. As the North Dakota Supreme Court explained:
The alienage being shown, it is presumed to continue until evidence to the contrary is shown. Hauenstein v. Lynham, U.S. 483, 25 L. Ed. 628. But, when it is shown that the party has cast a vote in this country, then this presumption disappears, and the opposite presumption prevails, because the law will not presume that a party has committed an unlawful act.
The Supreme Court and Congress both acknowledged this doctrine. In an opinion holding that a foreign-born person elected governor of Nebraska who had never been naturalized was, nevertheless, a U.S. citizen, based on the presumed naturalization of his father, the Court explained:
It is true that naturalization under the acts of congress known as the ‘Naturalization Laws’ can only be completed before a court, and that the usual proof of naturalization is a copy of the record of the court. But it is equally true that, where no record of naturalization can be produced, evidence that a person, having the requisite qualifications to become a citizen, did in fact and for a long time vote and hold office, and exercise rights belonging to citizens, is sufficient to warrant a jury in inferring that he had been duly naturalized as a citizen.
The longevity and vitality of this doctrine is demonstrated by its ratification by Congress in 1910. Congress did not treat unauthorized voting as a deportable offense. On the contrary, Congress made civic participation (such as voting) evidence of good faith and a basis to waive naturalization requirements, other than, of course, racial restrictions. Indeed, many states in the late nineteenth century specifically enfranchised noncitizens who had declared their intention to naturalize.
In sum, Africans in America who did not vote, seek office, or need a passport would have had no particular reason to naturalize because until 1874, for financial reasons, and after 1874, by positive law, they suffered no danger of deportation, even if not citizens. Those who participated in the establishment and operation of Reconstruction and later governments by voting or holding office would be presumed to have been naturalized, whether or not they actually went through the formal process. For these reasons, the absence of additional records of naturalizations is unsurprising.
Conclusion
The Fourteenth Amendment facially grants citizenship to all persons born or naturalized in the United States. The argument that it does not include the children of undocumented noncitizens rests on the claim that there were no “illegal aliens” in the United States in 1868, and moreover, that there had never been “illegal aliens” in the United States. These claims are simply wrong. Congress prohibited a group of people from coming to the United States, and provided that if they were here, they should be removed. Many of these people were in fact not removed but remained in the United States. Yet, there is no doubt that their children were granted United States citizenship under the Fourteenth Amendment. For the same reason, the children of undocumented noncitizens born in the United States are also citizens under the Constitution.