On Tuesday, June 30, House Speaker Mike Johnson was interrupted with the news that the Supreme Court had upheld birthright citizenship. His response was that he was disappointed and that this ruling would cause what he called serious challenges going forward. So what's the deal about birthright citizenship? Well, here it is.
When the war started on April 19, 1775, we didn't have a constitution. We didn't have a Congress. We didn't have a President. The Declaration of Independence was written and then transmitted to the King by a Declaration dated July 4, 1776. It was not a law. It was a declaration of grievances letting the King of England know why he was about to lose a war that started 13 months earlier, why a Catholic king was deposed 90 years earlier, and why basic rights guaranteed to his subjects in England applied to his subjects in America.
So where did the idea of making a Declaration come from? The men who wrote the Declaration had a history that was dear to them. Almost a 100 years before the revolution started, in 1689 the English Declaration of Rights was adopted in England. Power was transferred from the King to Parliament. The English Declaration outlined basic traditional civil rights, including freedom of speech, fair justice, prohibiting excessive bail and excessive fines, banned cruel and unusual punishments. The tyrannical Catholic king was deposed and his Protestant daughter, Mary and her husband William of Orange placed on the throne.
The English Declaration is a blueprint for our first 10 amendments, our Bill of Rights. And there's nothing in there about who the citizens are.
So, what does this have to do with birthright citizenship?
In 1859, there were more millionaires in Natchez, Mississippi, than there were in New York. The industrial revolution had not started. Northerners needed money and wanted to pass the Morrill Tariff Act and some anti-slavery legislation under which western territories could not be admitted to the Union if they allowed slavery.
Slavery is another topic for another day. This is not about slavery. It's about the slaves themselves.
Slaves were not citizens. The first ten amendments did not apply to them. No right to speak in public. No right to assemble. No right to vote. No right to keep and bear arms. No right to be free from unreasonable searches and seizures. No right to publish their own newspapers. And no freedom from cruel and unusual punishments. They were not people; they were chattel property. Their offspring inherited the loss of all these basic, fundamental rights which the Declaration of Independence says were endowed by our Creator. Illegal to own or possess firearms, they could not serve in either Army.
So, in 1860 11 Southern states seceded from the United States of America, elected their own president, and set up their own congress. In 1862, President Lincoln entered an executive order proclaiming that all persons held as slaves within any state or designated part of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free. Quotation marks excluded.
That's right, Lincoln proclaimed that only slaves within the states in rebellion were free.
Lincoln did not free the slaves in the northern states. They were conscripted to serve in the military. Their promise was freedom. But the law was not yet freedom. That means when the war was over, the federal government had no legal power to make it legal for freedmen to vote, own firearms, own property, etc. In 1868, the 11 States of the rebellion were denied readmittance to the Union if they did not amend their own state constitutions to outlaw slavery and also to grant basic civil rights to slaves. Slaves were not citizens, they had no rights, and no power to protect them from the coagulated vitriol generated when private property was freed by a Republican government.
When Mrs. Ulysses S. Grant was captured during the siege of Vicksburg, she and several of her black servants were held in captivity until they could be safely returned to General Grant. If you'd like to read more about the last U.S. President to have owned a slave and his wife, Julia, who was a slave mistress most of her life, go to whitehousehistory.org.
The 11 southern states were not readmitted to the Union until 1871. All of the 11 Southern states amended their own constitutions to abolish slavery in 1868. That includes Mississippi. The Thirteenth Amendment abolishing slavery was ratified by the northern states on July 9, 1868. Folks had to rely on the state constitutions from 1868 to 1871 because the southern states were not states again, yet. And they owed no fealty to the yankee oppressors.
On the same date, July 9, 1868, the Fourteenth Amendment was ratified. It says persons born or naturalized are citizens both of the United States and the state where they reside. Similar language was adopted by all 11 southern states, or they would not be readmitted to the Union. Privileges and immunities pass from state to state. The argument persists that if basic civil rights are not classed as fundamental, that the states can still abrogate those rights.
So what's the deal about birthright citizenship? Without the Fourteenth Amendment, children and grandchildren of slaves who were imported here against their will would still not be citizens. Progeny of slaves would have no basic rights endowed by our Creator. Progeny of slaves would have no right to keep and bear arms. No right to vote. No freedom to assemble and speak, that is no freedom of speech. No right to peaceably protest any grievance or acclaim any basic human right. If it weren’t for the Thirteenth and Fourteenth Amendments.
Whether people were brought here by brutal force or if they snuck in, their children born here are citizens. Period.
Bentley Conner is a Canton attorney.
