Birthright Citizenship and Early American History
To the Editor:
In early British colonial times, key terms were used to determine whether, and if so, how an individual (or group) could claim “citizenship.” Starting in the early 1600s, Britian developed the concept of subject/citizen based “on the soil,” the place where a person lived or originated. That tradition created complications regarding the status of slaves and their offspring. An unplanned problem began in 1619 when two privateers arrived at the Virginia coast with “20 Negroes” being forced into labor who had been taken from Spanish slave ships and who now were exchanged for food.
A massive irony was in the offing, given England’s preference for defining citizenship as “of the soil.” That doctrine would have reasoned that a child born to a white male slaveholder and an African enslaved mother should be a free citizen of the country of the father. Pressured to address this quandary by abolitionists in the American colonies and in England, in December 1662, the Virginia General Assembly passed Act XII that decreed that a child’s status, free or slave, depended on the mother’s status (of the womb), not the father’s. Accordingly, a child born to an enslaved woman was born into slavery and could therefore be the chattel property of the father. As well, the law prevented such child from having property claims against its father. This act clarified problems in Virginia law regarding slave versus indenture status because of the controversy created by a multiracial woman Elizabeth Key Grinstead who sued successfully to gain her freedom as well as her son’s.
In matters involving enslaved people, the Virginia General Assembly determined that a “mother’s womb” was the determining factor not the father’s “soil.”
Ironic variations of these circumstances occurred when white male owners created common law relationships with women of African descent. In that manner, both parents could protect the future of multiracial children.
What does this legal tradition have to do with birthright citizenship and immigration in the 21st century? Almost immediately after establishing a constitutional government, the United States struggled with immigration. The Alien and Sedition Acts of 1798 gave the president the power to imprison and deport (exclude) individuals dangerous to the nation; did that apply to British citizens during the War of 1812?
The Immigration Act of 1864 sought to solve problems of worker shortages by allowing contracted workers, including Chinese, to work on the transcontinental railroad. The Naturalization Act of 1870 deepened the 14th Amendment by affirming citizenship rights for people of African descent. In the midst and wake of the industrial revolution, immigration restrictions were imposed for many conditions including physical health, mental health, employability, placeability, work and residence location, and even gender. People in northern industrial cities and western states (especially with mining, timber, and railroad work) grew up knowing people whose relatives came to America under these conditions. Maternity is easier to establish than paternity. That became coupled with place (of origin) as a factor that facilitated or impeded an individual’s immigration. Centering around birthright citizenship, emerging USA doctrine on immigration in this century seeks to force immigrants to state and prove what they can do for us and that they can conform to “our culture” not just be good, useful citizens. Over the years, there have been many variations to this matter. Of the land and of the womb are essential elements of citizenship. As well, value to the USA is important. Afghans who assisted US/ NATO troops during the 20-year war, arguably deserve protection status. They helped us battle the Taliban and consequently have “no soil citizenship.” For thousands of relevant applicants, their status is frozen, and their immigration future is uncertain. U.S. government officials have suspended Special Immigrant Visa (SIV) processing and refugee admissions for Afghans. Thousands are stranded in third-party transit camps like Qatar. Restrictions or non-renewals have been placed on the legal status of many Afghans currently living inside the United States. What debt of gratitude do we owe them? (What violation kept two Nicaraguan Little League players from gaining a visa to come to America to play baseball?)
Four hundred years after 1619, 250 years after the Declaration, and since ratification of the Constitution and the 14th Amendment, we struggle to agreeably solve the problem of who deserves to live here and enjoy American citizenship. Without abandoning the past, the trend is to weave a workable legal fabric of national security, public safety, and economic stability.
Bob Heath Carmine