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emigrated to the colonies with the first settlers from that
nation. Still, the issue was not clear-cut, since neither the
Constitution nor any statute expressly recognized or defined
birthright citizenship. Jus soli was assumed to be the law, its
theoretical and practical contours vague.
The United States was a nation of immigrants, and in the
early 1800s its borders were open, with entry unrestricted.
America needed hands to farm, backs to toil in factories, and
pioneers to settle the West. By 1860, the population was 31.4
million, including 4.1 million foreign-born residents. Since
Day One, European immigrants had come mostly by choice—
except those Britain had transported as punishment. Most
Americans of African descent had had no choice, arriving as
they or their antecedents had in shackles as chattel. By 1860,
the slave population of the United States of America had
reached 3.9 million, mostly native-born.
Between 1820 and 1860 tentative streams from Ireland
and other European countries began what would become
an immigrant tide, causing xenophobia among so-called
nativists to surge. These descendants of immigrants
formed the anti-immigrant American Party, or
Know-Nothings—if queried about the party,
members were instructed to say they
knew nothing—whose 1856 platform
proclaimed that “Americans must rule
America.” That year, the party’s presi-
dential candidate, former chief execu-
tive Millard Fillmore, won 21.5 percent
of the popular vote. Xenophobia was not
universal. As of 1861, five states—Indiana,
Kansas, Michigan, Oregon, and Wiscon-
sin—allowed non-citizens to vote. In 1862, the
Homestead Act, implemented to settle portions of the West,
allowed foreigners stating their intent to become citizens to
take possession of publicly offered land.
The issue of birthright citizenship had reached
the Supreme Court in 1857. Dred Scott, a slave
born in Virginia, had sued his owner for his
freedom in federal court after the planter
brought Scott to a non-slave state. The
owner, a U.S. Army surgeon, had taken
Scott for several years to the free state of
Illinois and the free territory of Wiscon-
sin before returning the slave and his
family to the South. Scott needed to estab-
lish jurisdiction before the courts would con-
sider his case; he invoked diversity jurisdiction,
which allows a citizen of one state to sue a citizen of
another in federal court. Citizenship seemed to be a given for
the American-born Scott, but the Supreme Court disagreed,
closing the courthouse door by holding that African-Ameri-
cans were not citizens. Writing for the seven-justice majority,
Chief Justice Roger B. Taney called blacks “beings of an infe-
rior order” with “no rights which the white man was bound
to respect.” Advocates of slavery rejoiced. Foes mourned.
Enmity between North and South deepened.
During the Civil War, immigrants and African-Americans
rallied to the flag. More than 500,000 foreign-born men—
some naturalized, some non-citizens—and nearly 200,000
African-Americans fought for the Union. After the war, the
39th Congress faced the task of reunifying the country and
eradicating bondage and its vestiges. On December 6, 1865,
Georgia became the 27th state to ratify
the 13th Amendment, and slavery was
outlawed. The next step was establish-
ing citizenship for the formerly
enslaved. Importation of slaves had
ended in 1807; most freedmen of the
Dred Scott
“Stranger at Our Gate”
An 1896 political cartoon
blatantly derided Jewish
immigrants coming from
Eastern Europe.
Roger Taney