It is possible to tell the story of the 14th Amendment’s adoption as one driven by the maneuvering of highly placed lawmakers—judges and members of Congress. But the story of the 14th Amendment, and in particular its birthright citizenship provision, is one of far more than court opinions and legislative acts. It is also a story of how African American activists set out to develop a framework that would let them combat racism. Over nearly four decades, beginning in 1830, delegates attending the so-called colored conventions defined, debated, and advocated for the view that black Americans were birthright citizens. In 1868, with the ratification of the 14th Amendment, the rest of the nation caught up.
Delegates to the National Convention of Colored Citizens called upon the US House of Representatives’ Judiciary Committee in January 1869, did so as citizens. Six months earlier, ratification of the 14th Amendment to the US Constitution had settled a thorny question: what was the status of black Americans, including former slaves, before the law? With black Americans thereby deemed birthright citizens—persons whose status derived from their birth on US soil—a constitutional revolution was underway. A delegation from eight Northern, Southern, and Midwestern states set out to meet with lawmakers and test the limits of their rights. Their foremost demand was the vote, a demand befitting their new status.
This is what the 14th Amendment looked like in its first months. A committee of nine men, traversing Washington, DC, from the Union League Hall to the Capitol, to petition their government. It was a cold winter day, and overcoats would have been in order. Perhaps the delegates walked the 20 minutes, or caught a streetcar heading south. It was Isaiah Wears of Philadelphia, a veteran of the abolitionist movement, who spoke first. He offered an analysis of voting rights: their history, their relationship to a republican form of government, and why white southerners’ opposition to black suffrage should be set aside. The meeting concluded with a promise from the committee head that Congress would consider “an amendment to the Constitution, declaring universal manhood suffrage throughout the United States” in the upcoming term. Birthright citizenship was taking shape that season, here in the form of a Saturday morning exchange between black citizens and their representatives.
The 14th Amendment was new in 1869. But the questions that it answered about black citizenship were not. Black activists had been promoting birthright as the basis of their national belonging for nearly half a century, emanating from their struggles to secure well-being in what was still widely considered a “white man’s country.” If they could win rights as citizens, former slaves had long believed, perhaps they could resist those who aimed to exile them from the nation. Congress and the state legislatures that ratified the 14th Amendment were, it turns out, latecomers to the question.
Rather than recipients of legislative benevolence, black Americans were the architects of an idea that eventually redefined the terms of citizenship for everyone in the country. Since the 1820s, legislatures and courts had fitfully examined the question of black citizenship, leaving a checkered record and persistent doubts about where such men and women stood. In response, black activists seized upon birthright citizenship, acting as much out of necessity as political ideals. Their efforts refined the issue, nurtured it, molded it, and then held it out for lawmakers to formalize when the time was right. The aftermath of the Civil War and emancipation—in the era termed Reconstruction—was just that sort of moment.
This was not the first time Congress had taken up the question of black citizenship. The body’s earliest engagement dated back to 1820–21, when, while reviewing the first Missouri state constitution, federal lawmakers debated whether a clause banning the entry of free people of color into the state would violate the equal protection of black citizens. With some congressmen denying that the rights of citizens extended to African Americans, the lawmakers left Missouri at liberty to do as it saw fit.
Rather than recipients of legislative benevolence, black Americans were the architects of an idea that eventually redefined the terms of citizenship for all Americans.
Adding to the national uncertainty was the rise of colonization societies, which aimed to remove former slaves to Africa, and the passage of so-called black laws, which strangled daily life by limiting travel in and out of the state, requiring white supervision of public assemblies, including church services, barring black men from skilled trades, and making the possession of guns or dogs dependent upon court permission. Black activists wondered aloud how they might resist the pressures upon them to, in effect, self-deport. Perhaps, they began to posit, establishing themselves as citizens would help.
The claim to birthright citizenship did not emerge wholly formed. Black activists began in 1830 to think their way through a range of ideas. There was the US Constitution that, while generally silent on citizenship, did require that the president be a “natural-born Citizen.” Perhaps they, too, were born members of the nation. They proposed that their military service during the American Revolution and the fact of their labor, much of it uncompensated, serve as bases for a claim to rights.
In the pages of the first black-owned newspaper, Freedom’s Journal, and in the proceedings of the so-called colored convention movement, black activists began to develop and discuss their ideas with one another. They even sought expert legal advice, as, for example, when Baltimore’s black-led Legal Rights Association solicited an opinion from former Attorney General William Wirt. As the delegates to the 1835 Convention for the Improvement of the Free People of Colour in the United States put it: “This convention recommends … the propriety of petitioning congress and their respective state legislatures to be admitted to the rights and privileges of American citizens, and that we be protected in the same.”
The need for citizenship protections only grew in the 1840s and 1850s, and black activists claimed that—despite their histories as enslaved people and how differences of color were said to be signs of a natural difference in status—they were entitled to the equal protection of the laws. Circumstances worsened. Some colonization advocates proposed the forced removal of black people from the country, while black laws only expanded in scope, imposing harsher restrictions on African American travel, work, family, associations, and leisure. The Fugitive Slave Law of 1850 heightened the threat that free people would be kidnapped and illicitly sold as slaves. It was a discouraging period and doubts led to the formation of a black-led emigration movement that attracted those who saw more promise in Africa, Canada, or the Caribbean than in the US.
Some claims to citizenship took on a bold tone. Such was the case when Martin Delany insisted, “We are Americans, having a birthright citizenship” in his 1852 book, The Condition, Elevation, Emigration, and Destiny of the Colored People of the United States. Ironically, Delany made this claim just as he was planning to emigrate away from the US. He was not alone in concluding that, even if they were citizens, black Americans had no hope of an equal future in the land of their birth.
Others managed to eke out a semblance of rights, if only in a piecemeal fashion. In 1857, the US Supreme Court, in Scott v. Sandford, deemed black people noncitizens, without rights in the federal courts. The following year, the Maryland case of Hughes v. Jackson leaned in the other direction, rejecting the view that free black people were without rights. Jackson, a free black laborer, was entitled to use the state’s courts to protect his person and his property, including his children, who had been kidnapped and held as slaves. Struggles over citizenship rights continued, but the results were inconsistent.
This was the crucible of birthright citizenship. Black Americans scoured court decisions and legislative pronouncements. They read legal treatises and political commentary. They often confronted the problem of citizenship as it manifested in everyday life, making claims before local courts, clerks, and administrators. They even became historians of a sort, able to stitch together these varied sources into a legal chronicle that suggested that they had always been members of the nation’s body politic. A doctrine of citizenship was emerging, and it would have been familiar to anyone following the debate. As a delegate to an Ohio convention explained in 1857: “We are native-born inhabitants, and therefore, citizens. This is no newfangled doctrine of our making, nor is it the teaching of a hair-brained fanatic. This is a well-established principle of the law of Nature. It is a principle fully recognized and endorsed by all standard writers on law.”
The circumstances of the Civil War gave the question of black citizenship new urgency. As the conflict that many had believed was begun to save the Union was transformed into a war to end slavery, questions about black citizenship followed, on a grand scale. Emancipation proceeded unevenly as enslaved people freed themselves by fleeing plantations, farms, and urban workplaces, only to become freed again by military orders, acts of Congress, and even a president’s executive order, the Emancipation Proclamation. Abolition was not inevitable, but it likely appeared so to those enslaved people who found refuge behind Union lines and in camps in Virginia and Washington, DC, and on the sea coast of South Carolina. Few took seriously the idea that those black men, ultimately some 200,000, who took up arms for the Union could ever be re-enslaved.
Freedom did not, however, guarantee citizenship. Even the terms of 1865’s 13th Amendment, which abolished slavery, did not go so far as to define the status of former slaves before the law. The colored conventions resumed that year all across the country, and citizenship was on everyone’s mind. As had been the case before the war, convention delegates reached for the evidence at hand. New, for example, was an 1862 opinion issued by US Attorney General Edward Bates. Asked to determine whether black men could command American vessels, a privilege reserved to citizens of the US, Bates said yes. Speaking with federal authority, Bates affirmed the birthright citizenship long advocated for by black Americans. His text exhaustively reviewed their arguments, ones that had roiled the subject for decades.
For the first time, the work in black conventions was being complemented by official changes in Washington. At the 1864 National Convention of Colored Men, Ohio lawyer John Mercer Langston incorporated Bates’s opinion into his thinking about citizenship and, according to the proceedings, “claimed that that was a complete answer to the arguments and cavils against us.” Activists did not, however, leave it to lawmakers to steer the debate over citizenship. The 1865 National Equal Rights League convention committed to “agitate, entreat, and demand … the fulfilment of the nation’s pledges made to us … [until we are guaranteed] the full enjoyment of our liberties, protection to our persons throughout the land, complete enfranchisement, and until all are equal as American citizens before the law.” The convention concluded with the establishment of an independent National Equal-Rights League that would advocate for the realization of their birthright as American citizens.
While demands were being put to Congress, few black Americans waited for legislative sanction before trying on citizenship for size. Some of the earliest post–Civil War disputes between black and white Americans arose as newly discharged African American soldiers returned to Southern cities. Displaying government-issued firearms, they were confronted by local officials who sought to deprive them of those badges of freedom and citizenship. Not yet eligible for admission to the state militia, black war veterans formed their own organizations. They secured equipment (muskets purchased from the US Army), established armories, adopted uniforms, and paraded through city streets. Lawmakers in Washington would still take years to hammer out first the Civil Rights Act of 1866 and then the 14th and 15th Amendments. In the meantime, the day-to-day terms of belonging were being redefined as former slaves and their formerly free compatriots conducted themselves like rights-bearing citizens—all the while urging lawmakers to catch up with their ideas and their aspirations.
Ratified in July 1868, the 14th Amendment aimed to settle many questions left open in the wake of war, emancipation, and the need to reconstitute the nation. It constitutionalized birthright citizenship, guaranteeing it to all those born in the United States, excepting Native Americans and those otherwise not subject to US jurisdiction. The clause concerning birthright citizenship was a late addition to the Amendment, one that mirrored the citizenship provision of the Civil Rights Act of 1866 and, in effect, incorporated into the Constitution that for which Congress had already provided. What were the rights of such citizens? They were protected from any state law that would abridge their “privileges or immunities,” or interfere with their “life, liberty, or property, without due process of law,” and were guaranteed “the equal protection of the laws.”
Voting rights were the subject of Section 2, which provided that the states might lose representation in Congress should they deny the vote to male inhabitants. By Section 3, Congress was authorized to bar from office those who had once pledged to uphold the Constitution only to thereafter engage in “insurrection or rebellion.” Section 4 repudiated the Confederate debt, and all claims to compensation for property rights in enslaved people were deemed “illegal and void.” Some of the 14th Amendment’s provisions would never enjoy the force of law, such as its voting rights protections. The Supreme Court would render others, such as the guarantee of citizenship’s “privileges or immunities,” impotent in subsequent years. Still, there are those clauses—notably the guarantee of “equal protection of the laws” and the granting of citizenship to all those “born or naturalized in the United States,” that remain both relevant and controversial today.
The story of the 14th Amendment that regards its adoption as primarily the result of maneuvering by lawmakers draws a line from the Dred Scott decision of 1857, in which the Supreme Court deemed black American noncitizens, to the 1862 Attorney General opinion that deemed black Americans citizens enough to pilot coastal vessels, to the 1866 Civil Rights Act, which made birthright citizenship federal law and black Americans citizens, and finally to the 14th Amendment and its ratification in 1868, which constitutionalized birthright.
But as we’ve seen, the story of the 14th Amendment, and in particular its birthright citizenship provision, cannot be explained only by way of the efforts of judges and congress members. It is also a story about how black Americans discerned the need for a universal principle by which they, and indeed all those who aspired to belong to the United States, would be recognized as citizens. The birthright citizenship principle took shape in response to their need to resist the pressure to self-deport brought on by colonization schemes and black laws.
As Isaiah Wears put it during the 1869 National Convention of the Colored Men of America, only as citizens with the right to select their representatives could black Americans expect to enjoy “the right of property, in either real or personal estate, the right of residence, of personal liberty, or of life itself.” If the United States had long been a white man’s country, in 1869, after the ratification of the 14th Amendment, it was “a black man’s country” as well, Wears concluded.
Wears and his fellow activists thus set out to breathe meaning into the birthright citizenship that they had long demanded. They left the confines of their conference hall and met with the House Judiciary Committee to enlist support for universal male suffrage. That they limited their efforts to male voting rights speaks to the awkward place of women’s rights in the era of the 14th Amendment. Just days before their visit to Congress, these same men had taken part in a debate that erupted when the convention’s Committee on Credentials proposed including a woman, Helen Johnson of Pennsylvania, as part of the official delegation. Wears himself had spoken in Johnson’s favor, identified himself as a supporter of women’s suffrage and analogized the exclusion of Johnson as a woman to the exclusion of black men from the US body politic for two centuries.
Johnson was formally included as a convention delegate, a sign that black women, too, were taking part in debates over citizenship. Still, how far their rights might extend was an open question. When actually confronting officials in Washington, Wears led an all-male subcommittee that set their convictions about women’s suffrage aside, advocating for what they believed to be possible, rather than for what was true to the spirit of the 1869 convention.
The delegates continued their tour, meeting with the Senate Committee on Military Affairs, where they advocated for an amendment to the system of Civil War bounties, one that had discriminated against black soldiers. The committee chair assured the group that a remedial Joint Resolution would soon be adopted. The convention then had two more stops to make, meetings with the President-elect Ulysses Grant and Vice-President-elect Schuyler Colfax. John Mercer Langston spoke on behalf of the African American delegates, congratulating both men on their recent election. He then put the presence of black citizens into context. Little was ordinary about it. They had endured much, he explained, having “braved threats [and] defied intimidation [such that their] numbers have been reduced by assassination and murder.”
Langston’s tone was neither pleading nor tentative. Instead he spoke in a seasoned voice that reflected the many years that black activists had devoted to contemplating citizenship. Just as they had set out the terms of what became the 14th Amendment’s birthright provision, black Americans were prepared to direct the nation as it began to fully contemplate what citizenship might look like going forward. Citizenship was rooted in history—such as in the nation’s founding Constitution of 1787, which had not drawn a color line. “You will administer the Government according to the principles of morals and law announced by the fathers,” Langston urged. Citizenship demanded equality, and Langston expressed “confidence” in Grant’s ability to “conserve and protect the life, the liberty, the rights, no less of the humblest subject of the Government than those of the most exalted and influential.” In essence, Langston proposed to exchange “our devotion” for the President’s “maintenance of law” and ”conservation of freedom.” As citizens, black Americans defined the terms of national belonging as they forged a new partnership with the nation.