Near the end of October, President Trump declared his intent to end birthright citizenship in the United States via executive order. While unconscionable and likely illegal, it isn’t the first time the idea has been proposed. U.S. citizenship—that is who gets to be an American and who doesn’t—has a long, contentious history, often subject to the sentiments and prejudices of the contemporary moment. It has fluctuated throughout time, reinterpreted and redefined with each subsequent generation.
Citizenship in the United States has frequently been quite exclusionary; that is to say it has often been defined against who is not allowed to be a citizen. The Constitution delegates the right to Congress to establish rules of naturalization, a task it first took on with the Naturalization Act of 1790. The Naturalization Act restricted citizenship to “free white persons,” a concept that would be upheld more than 60 years later with the Supreme Court’s “Dred Scott” decision. Thus, in the United States the concept of citizenship has from the beginning been intimately bound with Whiteness.
This would change dramatically though with the passage of the 14th Amendment to the Constitution in 1868. After the passage of the 13th Amendment that freed the slaves at the end of the Civil War, the United States needed to decide how to incorporate the formerly enslaved into the Union. The 14th Amendment was its solution, overturning “Dred Scott” and declaring 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.” The tent of citizenship expanded. Along with Whites, African natives who had been enslaved and all born inside the United States, including slaves of African descent were now included among the citizenry. The principle of jus soli, or “right of the soil,” was firmly in place.
However, for every push in the forward in the march toward equality there is an inevitable pushback. The mid-19th century saw new influxes of immigrants from Europe and from Asia, most notably from China. As the country expanded westward, colonizing the lands of many Indigenous nations and committing some of its most notorious acts of genocide, new labor was needed to supplant the loss of the enslaved. Migrant workers from China fulfilled this role, laying the tracks of the railroad, clearing mountains and felling forests. With the influx of Chinese migrants to the United States, challenges to the concept of birthright citizenship emerged.
Wong Kim Ark was born in the United States in the 1870s to two Chinese immigrants. His parents returned to China, but he remained in America, visiting them from time to time. In 1895 upon his return to California he was blocked by a border agent, accused of not being a citizen. He challenged this accusation in court with his case rising to the Supreme Court (“United States v. Wong Kim Ark”). In 1898, a 6-2 ruling by the court upheld Wong’s rights to citizenship upon birth, establishing the precedent for birthright citizenship in the United States over the next 130 years.
Despite this legal victory, establishing citizenship by birthright when one’s parents were from elsewhere was by no means a given. The parameters of naturalization remained firmly entrenched within the systems of race and patriarchy. The 1882 Chinese Exclusion Act prevented almost all immigration from China. The 1924 Immigration Quota Act shut the door for most other Asian immigrants; the same year that all Native Americans were decreed citizens for the first time. Up until the 1930s, women of any racial heritage, who married non-citizens stood to lose their own citizenship under the Expatriation Act of 1907. Asian immigrants, not protected by the 14th Amendment’s expansion of citizenship rights would remain largely “ineligible for citizenship” until the 1940s.
Meanwhile numerous discriminatory laws and regulations restricted and constrained the ability for non-citizens to live and work in the United States. Alien Land Laws prevented mostly Japanese immigrants from purchasing land in most states. Permitting agencies made it difficult for non-citizen fishermen to gain access to livelihoods.
As non-White populations attempted to circumvent these restrictions, inevitably they were met with hostility and resistance. California legislators attempted to restrict the children of non-citizen immigrants from owning land. In 1942, nativist groups like the Native Sons of the Golden West attempted to prevent Japanese American citizens from being allowed to vote. And of course, during WWII, all those of Japanese ancestry, regardless of citizenship, were incarcerated from one to four years in the plains, swamps and deserts of America.
The concept of birthright citizenship has been defended from many attacks for the past 130 years, and though it has withstood these onslaughts, it is by no means secure. For many today, myself included, the notion of jus soli is the reason we are able to exercise our own rights of citizenship. Descended from those who were denied naturalization due to their race or who remained in the country in spite of discriminatory laws which would have seen them deported. Without birthright citizenship, our mothers, fathers and grandparents would have been born aliens in their own country.
William Faulkner once wrote that, “the past is never dead. It’s not even past.” Looking back from 2018, we can see that the rhetoric of the president and those who support his policies isn’t an aberration, but part of a recurring pattern. It is easy to forget how recent this history is, and the extent to which it holds the nation in its grip. Equality must be fought for every year, every day, every hour. It is never enough to assume that the tides of discrimination have receded, for once more they wash on our shores threatening to sweep us away.