On February 25, 2026 two historians submitted an amicus brief in a case challenging President Trump’s Executive Order withdrawing Birthright Citizenship from children born in the United States to immigrants without permanent legal status. The case is Trump v. Barbara which has been granted certiorari by the Supreme Court. The Brief was submitted by historians Martha Jones and Kate Masur.
“[C]onstitutional cases” permit no room for
“spotty,” “equivocal,” and “ambiguous historical
evidence.”2 To overcome stare decisis, Petitioners’
“historical evidence must, at a minimum, be better
than middling.”3 Petitioners’ “historical” account is
far worse than middling: it omits, and thus
misrepresents, the historical forces that led the
Framers to enshrine birthright citizenship in the
Fourteenth Amendment.
Petitioners insist that the Citizenship Clause
of the Fourteenth Amendment served “one pervading
purpose”: “to confer citizenship on the newly freed
slaves and their children.”4 This claim is
fundamentally incorrect. Amici submit this brief to
supply the history that Petitioners omit, and explain
why that history should matter for the Court’s
understanding of the Citizenship Clause.
When the Framers wrote birthright citizenship
into the Constitution, they were not addressing only
the status of former slaves. They were also remedying
the eight decades of injustice imposed upon free
people born in the United States, among them free
Black Americans, including those who had never been
enslaved. From the nation’s founding, free Black
American activists insisted upon their membership in
the national body politic and fought for the
application of a broad and inclusive definition of birthright citizenship. It was this view that the
Framers of the Fourteenth Amendment adopted,
knowing that it would apply to all children born in the
United States, whether Black or white and regardless
of their parents’ origin.
In the decades preceding the Amendment’s
ratification in 1868, some 500,000 free Black
Americans endured uncertain standing before the
federal Constitution. Though native-born and not
enslaved, free Black Americans, in many states north
and south, were not recognized as citizens. They were
instead subjected to anti-Black laws and threatened
with removal through a scheme termed
“colonization.” They endured denigration, mob
violence, and prohibitions against interstate travel.
They feared arrest and imprisonment and had limited
access to the nation’s courts. With growing intensity
from the 1830s to the 1860s, free Black Americans
responded to these oppressive circumstances by
insisting they were birthright citizens protected by
the U.S. Constitution. In newspapers, pamphlets,
and political conventions, at podiums and in
courtrooms, they claimed, as persons born in the
United States, that they were entitled to the
constitutional privileges and immunities belonging to
all citizens.
Petitioners erase the indispensable role of free
Black Americans in constitutionalizing birthright
citizenship and, as a result, misrepresent the origin,
purpose, and scope of the Fourteenth Amendment’s
Citizenship Clause. The Framers were aware that,
during the decades predating the Civil War, free
Black Americans had responded to legal obstacles,
unpredictability, and terror by insisting they were birthright citizens. The Framers in turn drafted a
bright-line, inclusive, national rule of birthright
citizenship that responded to the longstanding claim
of free Black Americans that they—like all free
persons born in the United States—were citizens.
And, as representatives of a nation in which 13.2
percent of the population were immigrants, the
Framers well understood that the Amendment’s
broad terms would recognize and protect the
citizenship status of the children of immigrants.5
This history demonstrates that the Citizenship
Clause was not, as Petitioners claim, a narrow
settlement that extended citizenship solely to
formerly enslaved people and their children, while
leaving the citizenship status of others open for future
negotiation through politics. Instead, the Clause
secured a broad and enduring constitutional rule
under which everyone born on the soil would be a
citizen.
Petitioners purport to condemn Chief Justice
Roger Taney’s “shameful” 1857 Dred Scott decision,
and yet they reprise Taney’s approach to citizenship:
a consent-based model that empowered political
leaders to determine which children born in this
country deserved to be citizens. Taney imposed race
and color prerequisites for citizenship and declared
that even free Black Americans born in the United
States could not be citizens. In dissent, Justice
Benjamin Curtis acknowledged the injustices visited upon free Black Americans and drew upon English
common law and the founding documents to conclude
that, in the United States, citizenship was acquired
upon birth, as a natural and inalienable right not
subject to curtailment by authorities.
When the Framers added birthright
citizenship to the Constitution, they vindicated the
claims that free Black Americans had made on behalf
of themselves, their progeny, and, by extension, the
progeny of the nation’s rapidly-expanding immigrant
communities. Not only did the Amendment repudiate
Taney’s reasoning in Dred Scott; it constitutionalized
what free Black Americans had long envisioned:
birthright citizenship for all.
In The Antebellum Era, Free Black
Activists Promoted A Broad Vision Of
Birthright Citizenship.
Petitioners’ brief rests on a crucial error: they
proclaim, contrary to ample and unequivocal
historical evidence, that the Citizenship Clause was
narrowly devised to do no more than “confer
citizenship on the newly freed slaves and their
children.”6 This brief demonstrates, by contrast, that
long before the Civil War, free Black Americans
believed in and fought for a broad-based, universal
vision of birthright citizenship, one that the Framers
of the Fourteenth Amendment ultimately adopted.
In the early republic, Black
Americans drew on the nation’s
founding documents and the
common law to assert birthright
citizenship in the face of
denigration and terror.
The history of Black American activism is
grounded in the sources upon which they relied when
claiming citizenship by birthright. By the 1790s,
Black American activists drew on the promise of the
Declaration of Independence—that “[a]ll men are
created equal”—and on the Constitution’s Article II
reference to the President as a “natural-born citizen.”
They also observed that the Constitution drew no
distinctions of race or color. Early state and federal
courts reinforced their view, holding that the United
States was subject to the universalizing principle of
birthright subjecthood articulated in the English
decision, Calvin’s Case, 77 Eng. Rep. 377 (1608):
“[A]ll those that were born under one natural
obedience … should remain natural born subjects,
and not aliens; for that naturalization due and vested
by birthright, cannot by any separation of the Crowns
afterward be taken away….”
As northern states gradually abolished slavery
at the close of the eighteenth century, growing free
Black communities established churches, schools, and
mutual-aid societies; and some free Black men
exercised their right to vote.8 But terror also loomed.
In 1793, Congress had passed the Fugitive Slave Act,9
authorizing the recovery of slaves who escaped into
states where slavery was outlawed. The measure led
to the kidnapping and detention of free Black people.
These harrowing circumstances prompted calls upon
Congress to protect free Black Americans as citizens.
In 1799, scores of Philadelphia’s free Black residents
led by the Reverend Absalom Jones—head of the Free
African Society and the nation’s first Black Episcopal
priest—petitioned Congress for redress, representing
themselves as citizens “like every other class of
Citizens” and claiming “the Liberties and unalienable
Rights” provided for by the Constitution.10 Congress
never acted on the merits of their petition.
In the early nineteenth century, authorities
increasingly denied that free Black Americans could
be assimilated into American society and organized to
undermine their claims to “natural-born” citizenship.
Many of these elites insisted the best course was to
“colonize” free Black Americans—that is, to resettle
them outside the United States.11 That thinking was
formalized with the 1816 founding of the American
Colonization Society (ACS), led by such prominent
men as Speaker of the House Henry Clay. In its
typical idiom, in 1821, the ACS urged Congress that
free Black Americans “are not, and cannot be, either
useful or happy among us,” and it would be “best, for
all the parties interested, that there should be a separation.”12 The ACS established the West African
colony of Liberia and provided ships, pressuring free
Black Americans to voluntarily relocate. They
insisted that even free Black Americans born in the
United States were not really Americans and
possessed no right to remain in the United States or
enjoy membership in its body politic.13
Free Black Americans thus faced precarious
circumstances, their rights and privileges varying
from state to state. Some northern states, like
Massachusetts and New York, affirmed that free
Black residents were state citizens, while most
southern and many northern states did not.14 Ohio
and other midwestern states passed anti-Black
legislation—“Black Laws”—that discouraged Black
in-migration and settlement. An 1804 Ohio law
required that “black or mulatto” persons seeking to
“settle or reside” in the state provide proof of their
freedom and carry work permits.15 Ohio and several
other free states subsequently extended and
reinforced such laws.
When free Black Americans traveled to states
that did not recognize their citizenship, they could be
treated as runaway slaves and subjected to
interrogation, imprisonment, and sale into servitude.17 Free Black sailors working along the
Atlantic Coast were especially vulnerable. Southern
state laws required them to submit to jail or
“quarantine” while in port, even if their home states
recognized them as citizens.18 In 1822, when South
Carolina passed the first “Negro Seamen Act,” ship
captains complained immediately that Black seamen,
though “native citizens of the United States,” were
unjustly seized and imprisoned “without a writ or any
crime alleged.”19 Some authorities, including a U.S.
Attorney General and a federal judge, held the Negro
Seamen Act violated Congress’s treaty-making and
interstate commerce powers.20 Still, local officials in
South Carolina and elsewhere enforced such laws,
leaving free Black sailors at risk of incarceration and
sale into slavery.
The deadliest slave rebellion in U.S. history,
led by Nat Turner in 1831, prompted many states to
harden their laws regulating free Black Americans.
State lawmakers claimed that the example set by free
Black people threatened to incite unrest among the
enslaved.22 One legislative response came from
Octavius Taney, a member of Maryland’s senate and
brother of then-U.S. Attorney General Roger Taney.
In early 1832, Octavius Taney proposed Maryland
lead the wholesale removal of all “free persons of color from our state, and from the United States.”23
Maryland did not go as far as Taney urged, but it did
enact punishing Black Laws, banning free Black
people from entering the state or staying longer than
ten days, denying a right of return to Black residents
who ventured out of the state for more than thirty
days, and prohibiting Black religious meetings
outside the presence of a white minister.
Laws imposing special restrictions on free
Black Americans were consistent with the aims of the
ACS. Such laws branded free Black people as
unwelcome sojourners, denied them fundamental
rights, and signaled that white Americans were not
required to tolerate their presence. Black
entrepreneur and activist James Forten wrote from
Philadelphia in 1813 that such policies invited abuse,
allowing “police officers … to apprehend any black,
whether a vagrant or a man of responsible character,
who cannot produce a Certificate that he has been
registered.” Such laws encouraged mobs to harass
and “hunt” random Black people, knowing they had
limited recourse before the courts. “Can any thing be
done more shocking to the principles of Civil Liberty!”
Forten decried.25 Where Black Laws ruled, reports
abounded of white residents preying on their Black
neighbors: seizing property, demolishing homes,
running them out of the community, and even
engaging in kidnapping and mob assaults.
Black Americans, organized in the
Colored Conventions Movement,
pushed back against the African
Colonization Society and Black
Laws by asserting their status as
citizens by birthright.
Free Black Americans faced strong pressure to
self-deport, given the ACS’s colonization scheme, state
Black Laws, limited recourse in court, and predation
and abuse by white neighbors.27 Still, most did not
abandon the nation of their birth. Instead, they
organized a political movement, remembered as the
Colored Conventions Movement. Founded in
Philadelphia in 1830, it flourished for decades as a
venue in which Black Americans developed their ideas
and plans of action.
The conventions left a voluminous published
record which, along with Black newspapers of the
period, evidence free Black Americans’ campaign to
secure universal, birthright citizenship as the law of
the land.29 Attendees at the inaugural 1830
convention resisted the ACS’s colonization scheme
with an assertion of birthright: “[W]e who have been
born and nurtured on this soil, we, whose habits,
manners, and customs are the same in common with
other Americans, can never consent to take our lives in our hands, and be the bearers of the redress offered
by [the ACS].”30 In subsequent years, free Black
Americans continued to insist that they were citizens
by birth. Noting parallels between the ACS’s efforts to
remove free Black Americans and the genocidal purge
remembered as the Trail of Tears, a New York
convention headed by Samuel Ennals and Philip Bell
warned that if “a colony was formed for the blacks in
the United States, they would in a short time be
removed, as has been the case with the poor
Indians.”31 That convention understood that the
ACS’s anti-Black program encouraged selfdeportation: “They cannot use force; that is out of the
question. But they harp so much on ‘inferiority,’
‘prejudice,’ ‘distinction’ and what not, that there will
no alternative be left us but to fall in with their
plans.”
Free Black Americans invoked their status as
citizens born in the United States as a shield against
colonization. Delegates at an 1835 Philadelphia
convention published an address “To the American
people” that advised: “[W]e claim to be American
citizens, and we will not waste our time by holding
converse with those who deny us this privilege, unless
they first prove that a man is not a citizen of that country in which he was born and reared.”33 Delegates
regularly appealed to the examples of the American
Revolution and the Declaration of Independence. For
instance, led by Ohio’s William Lambert, members of
an 1843 Michigan convention declared they had
studied the “fathers of ‘76” and failed to “discover
anything like a system of exclusion.” “No!” they
insisted, “there is not an expression, nor an implied
sentiment to be found making a distinction in the
rights and privileges of any class of American citizens.”
Delegates urged that the nation, from its founding,
had “boldly proclaim[ed] that all men are born free and
equal, and that consequently life, liberty, and the
pursuit of happiness, are inherent in every individual,
vested inalienably by natural birth-right.”34 Likewise,
at an 1848 Philadelphia convention, a committee
report set forth: “Let us rest our cause on the
republican standard of the revolutionary Fathers,
while we knock at the doors of the constitution and
demand an entrance. If we are asked what evidence
we bring to sustain our qualifications for citizenship,
we will offer them certificates of our BIRTH and
NATIVITY.”
Free Black Americans hoped an ironclad claim
to U.S. citizenship—citizenship by birthright—would
enable them to withstand inequitable and often
terrifying circumstances.36 For instance, as national
citizens they hoped to avoid the terms of an 1844
Maryland statute that limited their right to travel
across state lines. The stakes were high: violators of
the law faced fines, imprisonment, or sale into
servitude.37 Free Black sailors, if recognized as
birthright citizens, could better defend themselves
against abuses in southern ports. Free Black
Americans and their allies pressed Congress to
protect Black Americans under the Privileges and
Immunities Clause, Article IV, sec. 2, but Congress
did not act.38 Then, with support from the
Massachusetts government, they looked to challenge
the Negro Seamen Acts in federal court. But the
attorneys sent to Charleston and New Orleans to
bring claims under Article IV were threatened with
mob violence and run out of town.
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