In 1826, a young Black mariner by the name of Gilbert Horton strode ashore in Norfolk, Virginia, clad in “a tarpulin hat, linen shirt, blue cloth jacket and trowsers (sic).” Horton gave disembarking as little thought as one might give to walking to the grocery store: he was a free man, manumitted as a child and, after a long apprenticeship, eventually worked as a sailor on cargo vessels coming in and out of the New York Harbor. Yet, he was now in the slave states, and when he traveled to Washington, D.C., he was arrested and held in jail either “until his owner or owners…come and prove him” or he could be sold into slavery to “cover the expenses” of his arrest. Without manumission papers or any other documentation to offer his jailers, Horton had little recourse. In their eyes, he was a runaway, not a U.S. citizen, despite being born in the country.
Horton eventually secured his released as, fortunately, he was able to call on white New York neighbors who could enlist politicians to intervene on his behalf. But the thornier question, whether Horton was a citizen and had the rights of a free person to travel, was not yet answered — and it would not be answered until after the Civil War.
After President Donald Trump signed an executive order to change the meaning of the 14th Amendment to end “birthright citizenship,” it may be helpful to consider Horton’s story, the origins of the 14th Amendment and its roots in the struggle for abolition.
The question of citizenship was foremost on the minds of abolitionists and free Black people in the years before the Civil War.
As historian Martha S. Jones describes in her book “Birthright Citizens,” the question of citizenship was foremost on the minds of abolitionists and free Black people in the years before the Civil War. Meeting in what they called “Colored Conventions,” abolitionists and leaders of Black civil society in the North landed on the question of citizenship as a key demand. They argued that citizenship would not only guarantee rights, but it would also set the legal framework for the end of slavery.
Abolitionists and Black leaders weren’t just concerned about an abstract future. The 1820s and 1830s witnessed the rise of “colonialization” movements among white politicians and intellectuals, the most extreme versions of which imagined free Blacks would be forcibly deported to Liberia or to Haiti. Many politicians thought of “Black codes” not only as means to deprive free Black people of opportunities or freedom of movement, but also as means to coerce them to leave the country. Even Abraham Lincoln envisioned mass exodus of African Americans should emancipation happen, until Frederick Douglass and other abolitionists convinced him otherwise. The subtitle of Douglass’ autobiography, “An American Slave,” was both an accusation against the United States and a claim for citizenship.
Many African Americans in the decades before the Civil War were also well aware of the forced removal of the Cherokee from Georgia. While Native Americans were governed under treaty law throughout the 19th century, Black writers and activists saw an immediate analogy to their own situation. As one delegate to the 1831 Colored Convention explained, “the American Colonization Society stands with the same attitude to our colored population as Georgia does to the Cherokee.” If the Cherokee could be removed, even after the Supreme Court defended their rights, the deportation of free African Americans — even those who owned property — could not be far behind.
In 1857, the Supreme Court issued its Dred Scott ruling, in its coercive attempt to settle the question. African Americans were not held to be citizens, Chief Justice Roger Taney wrote, and no Black person “had rights the white man was bound to respect.” Border states such as Maryland soon began to act on Taney’s decision; some lawmakers proposed the re-enslavement of free African Americans, now that the court had ruled them noncitizens. It took the post-Civil War constitutional amendments to overturn that ruling.
The 14th Amendment was born not only of a Union victory and of the radical Republicans, but also out of decades of struggle by free and formerly enslaved African Americans who fought for a secure place in the American nation. Their insight was not merely practical: it was deeply embedded in both legal and historical understanding regarding rights and the United States. Rather than perceive the U.S. as a nation with a franchise that could be expanded to different groups, they understood the U.S. was constituted as a nation that deprived people of rights and their relationship to place. African Americans and Indigenous people experienced the founding of the U.S. and the early days of the Republic as a loss of status, land, rights and a common law understanding of belonging to the region where one was born.
Trump’s executive order is thus not only an attempt to undo more than a century of immigration law.
This insight would come to transform the nation. As historian Eric Foner has observed, the Civil War and the passage of the 14th Amendment ensured that all persons born in the United States, regardless of race or status, are not only subject to its laws, but can also exercise its privileges and duties. Foner refers to the Civil War, as had abolitionists at the time, as the “Second American Revolution.” For Black people, one might say it was the first.
The amendment alone did not secure such rights but it laid the groundwork for the legal fight over equality during the next centuries. Without birthright citizenship, Foner argued, we are not a democracy. Expulsion, as much as immigration, is the history of the United States.
Trump’s executive order is thus not only an attempt to undo more than a century of immigration law. It is an attempt to undo the revolution of the Civil War and the last scraps of Reconstruction, which for the first time promised all Americans rights and laid the foundation (if not the practice) of a multiracial democracy. A democracy, as Ben Franklin famously said, so long as we can keep it.
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