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Posted by Heather Cox Richardson

https://heathercoxrichardson.substack.com/p/june-27-2025

After the Supreme Court today decided the case of Trump v. CASA, limiting the power of federal judges to issue nationwide injunctions, President Donald Trump claimed the decision was a huge victory that would permit him to end birthright citizenship, that is, the principle that anyone born in the United States, with very limited exceptions, is a U.S. citizen. To reporters, he claimed: “If you look at the end of the Civil War—the 1800s, it was a very turbulent time. If you take the end day—was it 1869? Or whatever. But you take that exact day, that’s when the case was filed. And the case ended shortly thereafter. This had to do with the babies of slaves, very obviously.”

This is a great example of a politician rooting a current policy in a made-up history. There is nothing in Trump’s statement that is true, except perhaps that the 1800s were a turbulent time. Every era is.

The Fourteenth Amendment that established birthright citizenship came out of a very specific moment and addressed a specific problem. After the Civil War ended in 1865, former Confederates in the American South denied their Black neighbors basic rights. To try to remedy the problem, the Republican Congress passed a civil rights bill in 1866 establishing “[t]hat 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; and such citizens of every race and color…shall have the same right[s] in every State and Territory in the United States.”

But President Andrew Johnson, who was a southern Democrat elected in 1864 on a union ticket with President Abraham Lincoln, a Republican, vetoed the 1866 Civil Rights Bill. While the Republican Party organized in the 1850s to fight the idea that there should be different classes of Americans based on race, Democrats tended to support racial discrimination. In that era, not only Black Americans, but also Irish, Chinese, Mexican, and Indigenous Americans, faced discriminatory state laws.

In contrast to the Democrats, Republicans stated explicitly in their 1860 platform that they were “opposed to any change in our naturalization laws or any state legislation by which the rights of citizens hitherto accorded to immigrants from foreign lands shall be abridged or impaired; and in favor of giving a full and efficient protection to the rights of all classes of citizens, whether native or naturalized, both at home and abroad.”

When Republicans tried to enshrine civil rights into federal law in 1866, Johnson objected that the proposed law “comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks,” as citizens, and noted that if “all persons who are native-born already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such.” And if they weren’t already citizens, he wrote, Congress should not pass a law “to make our entire colored population and all other excepted classes citizens of the United States” when 11 southern states were not represented in Congress.

When Congress wrote the Fourteenth Amendment to the Constitution, it took Johnson’s admonition to heart. It did not confer citizenship on the groups Johnson outlined; it simply acknowledged that the Constitution had already established their citizenship. The first sentence of the Fourteenth Amendment reads: “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 short term, Americans recognized that the Fourteenth Amendment overturned the 1857 Dred Scott v. Sandford decision, in which the Supreme Court ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” The Fourteenth Amendment established that Black men were citizens.

But the question of whether the amendment recognized birthright citizenship for all immigrants quickly became an issue in the American West, where white settlers were not terribly concerned about Black Americans—there were only 4,272 Black Americans in California in 1870, while there were almost half a million white Americans—but wanted no part of allowing Chinese men to be part of American society.

Western state legislatures continued to discriminate against Asian immigrants by falling back on the country’s early naturalization laws, finalized in 1802, to exclude first Chinese immigrants and then others from citizenship. Those laws were carefully designed to clarify that Afro-Caribbeans and Africans—imported to be enslaved—would not have the same rights as Euro-Americans. Those laws permitted only “free white persons” to become citizens.

In the late nineteenth century, state and territorial legal systems kept people of color at the margins, using treaties, military actions, and territorial and state laws that limited land ownership, suffrage, and intermarriage.

As late as 1922, in the case of Takao Ozawa v. United States, the Supreme Court ruled that Takao Ozawa, born in Japan, could not become a citizen under the 1906 Naturalization Act because that law had not overridden the 1790 naturalization law limiting citizenship to “free white persons.” The court decided that “white person” meant “persons of the Caucasian Race.” “A Japanese, born in Japan, being clearly not a Caucasian, cannot be made a citizen of the United States,” it said.

The next year, the Supreme Court decision in United States v. Bhagat Singh Thind upheld the argument that only “free white persons” could become citizens. In that case, the court said that Thind, an Indian Sikh man who identified himself as Indo-European, could not become a U.S. citizen because he was not a “white person” under U.S. law, and only “free white persons” could become citizens. After the Thind decision, the United States stripped the citizenship of about 50 South Asian Americans who had already become American citizens.

Those discriminatory laws would stand until after World War II, when U.S. calculations of who could be a citizen shifted along with global alliances and Americans of all backgrounds turned out to save democracy.

But despite the longstanding use of laws designed to perpetuate human enslavement to prevent certain immigrants from becoming citizens, the Supreme Court always upheld the citizenship of their children. In 1882, during a period of racist hysteria, Congress passed the Chinese Exclusion Act agreeing that Chinese immigrants could not become citizens.

Wong Kim Ark was born around 1873, the child of Chinese parents who were merchants in San Francisco. In 1889 he traveled with his parents when they repatriated to China, where he married. He then returned to the U.S., leaving his wife behind, and was readmitted. After another trip to China in 1894, though, customs officials denied him reentry to the U.S. in 1895, claiming he was a Chinese subject because his parents were Chinese.

Wong sued, and his lawsuit was the first to climb all the way to the U.S. Supreme Court, thanks to the government’s recognition that with the U.S. in the middle of an immigration boom, the question of birthright citizenship must be addressed. In the 1898 U.S. v. Wong Kim Ark decision, the court held by a vote of 6–2 that Wong was a citizen because he was born in the United States.

Immigration scholar Hidetaka Hirota of the University of California, Berkeley, explains that the government went even further to protect children born in the U.S. In 1889 the Treasury Department—which then oversaw immigration—decided that a native-born child could not be sent out of the country with her foreign-born mother. Nor did the government want to hurt the U.S. citizen by expelling her mother and leaving her without a guardian. So it admitted the foreign-born mother to take care of the citizen child.

The Treasury concluded that it was not “the intention of Congress to sever the sacred ties existing between parent and child, or forcibly banish and expatriate a native-born child for the reason that its parent is a pauper.”

In May 2023, then–presidential candidate Donald J. Trump released a video promising that on “Day One” of a new presidential term, he would issue an executive order that would end birthright citizenship. He claimed that the understanding that anyone born in the United States is automatically a citizen is “based on a historical myth, and a willful misinterpretation of the law by the open borders advocates.”

It is actually a historical myth and a willful misinterpretation of the law that the Civil War ended in 1869, that birthright citizenship came out of a case filed on that exact day, and that the “case” was “very obviously” about “the babies of slaves.” But there were indeed echoes of the past in the administration’s position on immigration today. The administration's announcement that it is terminating Temporary Protected Status for half a million Haitians, stripping them of their legal status, seems to echo the ancient laws saying only “free white persons” can become citizens.

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Notes:

https://www.presidency.ucsb.edu/documents/republican-party-platform-1860

Edward McPherson, The Political History of the United States of America during the Period of Reconstruction (Washington: Solomons & Chapman, 1875), pp. 75, 78, at https://www.google.com/books/edition/The_Political_History_of_the_United_Stat/x7HmnHL1OvQC

https://werehistory.org/immigrant-parents/

Bluesky:

atrupar.com/post/3lslzwd3nc22q

reichlinmelnick.bsky.social/post/3lsm3vbj6uk2d

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https://heathercoxrichardson.substack.com/p/june-27-2025