Gabriel Jackson Chin, University of California, Davis School of Law, and Paul Finkelman, Gratz College, have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation, which is forthcoming in volume 54 of the UC Davis Law Review (2021):
In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.–Dan Ernst
This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.