If you assumed birtherism and attacks on Black citizenship were a flash in the pan for conservatives, think again. An official resolution from the National Federation of Republican Assemblies (NFRA) recently argued that Kamala Harris and other candidates “whose parents were not American citizens at the time of their birth” are not qualified to serve as president. Shockingly, their legal arguments cite the infamous Dred Scott v. Sanford case to justify the exclusion of a Black candidate.
For those unfamiliar with the case, Dred Scott and his wife, Harriet, sued for their freedom in the St. Louis Circuit Court in the spring of 1846. Unfortunately, the Supreme Court halted their efforts. Since “his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri,” and as such, “not entitled to sue,” justices argued. Their decision extended to “any free Negro of the African race, whose ancestors were brought to this country and sold as slaves.” While some enslaved people successfully sued for their freedom, such as Elizabeth Key Grinstead in 1656 and Elizabeth Freeman in 1781, the Dred Scott v. Sandford case was a brutal legal attack on the abolition movement, a setback that meant courts would not consider Black people citizens.
Despite the first Africans arriving in the Spanish colony of Florida in 1513 and the British colony of Virginia in 1619, their enslaved status initially excluded the group from citizenship. However, the interpretation shared in Dred v. Stanford broadened that exclusionary interpretation of the U.S. Constitution, suggesting that neither one’s freedom nor birthplace made someone a citizen, especially when the status of one’s parents was concerned. Simply by virtue of having enslaved African ancestors was sufficient to deprive someone of citizenship, according to Chief Justice Roger B. Taney. In the case of Kamala Harris, some Republicans believe she’s ineligible because of her parents’ status. Of course, Taney’s exclusionary citizenship ended generations ago with the passage of the 14th Amendment. This Reconstruction Era legislation declared that “all persons born or naturalized in the United States” are “citizens of the United States and the State wherein they reside, making Black people, even those with enslaved African ancestors’ full-fledged citizens. To the ire of some, this legal status also extends to the children of immigrants.
Dred v. Stanford is widely seen as one of the worst decisions in the history of the U.S. Supreme Court because of its implications. This case stripped Black people of their humanity and extended federal authority to maintain the chattel slavery system. Their decision is a cautionary tale about the impact of originalist legal interpretations. When the country was founded, only White, land-owning men could vote and serve as elected officials, and there were no official standards for citizenship. Some “founding fathers” European colonists, like Thomas Jefferson, enslaved African people and displaced Indigenous groups in pursuit of westward expansion. Thus, if we limit our interpretation in the modern era, we risk sliding backward, becoming more exclusionary, which is troubling given the diverse racial and ethnic makeup of Americans.
Debates continue about who should be included and excluded from citizenship. For instance, Florida Governor Ron DeSantis, Lindsey Graham, and former President Donald Trump each signaled they want to see the end of birthright citizenship. Of course, the irony shouldn’t be lost on us that Donald Trump’s mother, Mary Anne MacLeod, was a Scottish immigrant who only became a citizen a few years before his birth. Then, there’s the fact that Trump’s wife, Melania, did not become a citizen until July 28, 2006, months after giving birth to Barron Trump, their son. Their standard would mean even Trump’s youngest son couldn’t become president — an apparent but unintended contradiction resulting from efforts to exclude some Black and ethnically diverse candidates. This oversight is likely because of the preferential treatment often extended to white, European-descendant immigrants. As author and civil rights organizer Charles Kamasaki noted, “from the early 1900s through the 1960s, millions of predominantly white immigrants entered the country unlawfully but faced virtually no threat of apprehension or deportation.” His article in Brookings suggested the U.S. immigration policy is a “classic, unappreciated example of structural racism.”
While many Americans see Dred Scott v. Stanford as water under the bridge, a terrifying case we can gawk at, to distance ourselves from racial attitudes of the chattel slavery era, we have to wake up and smell the coffee. As their platform suggested, some see the justices’ exclusionary view of citizenship as politically advantageous, a way to kick a Black candidate off the ballot. This discourse is happening against the backdrop of national immigration debates, with some supporting a pathway to citizenship and protections for immigrants and others wanting to make it more difficult for immigrants to come here. Despite all White Americans coming from immigrants, there’s an effort to oppose newer immigrants, particularly outside of Europe. Before any changes are made or even formally proposed by a major political party, we should consider the value of the 14th Amendment.
This legislation extended citizenship to four and a half million formerly enslaved Africans and set the standard for citizenship for the first time in the country’s history. Most citizens today, regardless of race or ethnic background, received their status through birthright citizenship. And if this legal standard fell, the country could find itself wading into uncharted waters, with some advocating for various forms of racial, ethnic, and geographic restrictions. Throughout the civil rights era, activists and scholars argued that Black people and other marginalized groups were entitled to constitutional protections. Still, without citizenship, the promise of equal protection could be wholly abandoned. While the restrictive citizenship movement is rooted in a xenophobic ideology that Americans should fear foreigners, this effort also has racist implications. Throughout history, Black people were denied the protection of the law without “birthright citizenship,” as seen in Dred Scott v. Stanford. And the fact that some Republicans now see the legal arguments made by pro-slavery justices as fair game to remove a Black candidate from the ballot is concerning. It’s a sign that some Americans are uninterested in looking forward together. They prefer what they see in the rearview mirror.
This post originally appeared on Medium and is edited and republished with author's permission. Read more of Allison Gaines' work on Medium.