In the United States, it is common to celebrate the institution of birthright citizenship as one of the most important political and legal achievements in the Civil War’s aftermath. The Reconstruction Amendments included the principle of jus soli birthright citizenship, and this inclusive principle was intended to remove any uncertainty about the standing of former slaves and their descendants before the law. Of course, we already know that this guarantee did not bring about full benefits of citizenship to all, and its legal basis has been continuously undermined ever since its inception (e.g., Ngai, 2007). Nevertheless, it is the very existence of birthright citizenship that has allowed groups like Chinese Americans and children of undocumented migrants to justify their national belonging, both legally and rhetorically.

In Birthright Citizens: A History of Race and Rights in Antebellum America, legal historian Martha Jones traveled back to antebellum Baltimore to uncover the citizenship debates that anticipated the birthright citizenship clause as codified in the Fourteenth Amendment. What resulted was a meticulously researched, richly textured, and entirely original piece of scholarship that rewrites the genealogy of birthright citizenship in the United States. Scholars interested in this genealogy largely took the Reconstruction as starting point and investigated subsequent efforts (such as Jim Crow, the Chinese Exclusion Act, and contemporary denials of birth certificates along the US-Mexico border) to erode birthright citizenship and undermine its practical application. Among them, legal historians especially focused on textual interpretations of landmark legal decisions. Jones, however, argued that the antebellum portion of this genealogy is not reserved for the notorious Dred Scott v. Sandford (1857) decision by the US Supreme Court alone. Birthright citizenship—as codified in the Fourteenth Amendment—represents an imperfect conclusion to vigorous public debates about the status of free black people not just within the courts and the legislatures by white judges and politicians, but also by black people themselves in newspapers, conventions, and their daily interactions with the law. Moreover, birthright citizenship was as much of a black idea as a white intervention. Although terms like citizenship and rights were piecemeal and defined only when needed during this era, it was precisely the resultant incongruences among different geographies—at different legal institutions from municipal offices to state courthouses, across jurisdictions at multiple scales (and even internationally)—that provided free black people openings to claim and exercise select rights that we might understand as forms of citizenship during the antebellum period. And the city of Baltimore, for Jones, was the perfect vantage point from which to view antebellum black ideas about citizenship.

As a geographer, I found heartening Jones’ insistence on the centrality of antebellum Baltimore as a connected and multi-scalar place to her historiography. Especially in homage to social histories of free African American communities, Jones argued that analyzing the local legal culture that had manifested at Baltimore at that time is essential to understanding how free black people themselves struggled with their legal standings across levels of jurisdictions in the US (p. 12). There are multiple reasons why Baltimore was such a perfect vantage point to see these struggles and interactions. It embodied many incongruences that shaped the fraught legal and cultural terrain in antebellum United States. A cosmopolitan port city with the largest free black population of any city in the United States then, Baltimore was nonetheless part of a slaveholding state in Maryland, where agricultural economy (especially in the southeast) depended upon bound labor. Legal institutions in the city of Baltimore therefore had to confront and, to a limited degree, respond to free black people’s dealings with the law in situations where conflicting definitions of rights might brush up against one another. It was in these dealings where free black people learned about and argued for exercising some rights, and their debates and practices also informed white jurists at the time—most notably Roger Taney, a Baltimore native and the most celebrated jurist in the antebellum era who, as Chief Justice of the United States, delivered the majority opinion in the aforementioned Dred Scott case. As Jones would show expertly in the rest of the book, Baltimore was a heady mixture where ideas about and practices of free black citizenship fomented during the antebellum era.

Birthright Citizens is organized largely into two parts: the first, chapters 1 to 4, explores how free black Baltimoreans developed legal consciousness through their connections to circumstances outside of or larger than the city of Baltimore, in order to address legal developments that might have threatened their existence at home; the second, chapters 5 to 7, covers black Baltimoreans’ interactions with local courthouses in Baltimore, where they “carried themselves like rights-bearing citizens” and, in so doing, “inverted the intention of the black laws” (pp. 13-14). Chapter 8 looks briefly at the Dred Scott case—as Jones put it, “but a late volley in the antebellum story of race and rights” (p. 14)—and its reverberations in Baltimore, where the deliberations were widely covered yet its negative decision changed little in free black Baltimoreans’ daily lives. The book concludes with an assessment of early Reconstruction’s legal impact on black people, which included many of the legal claims that free black Baltimoreans had already been pursuing and exercising in the local courthouse since the antebellum era.

In the first part, Jones drew on an eclectic collection of events, documents, and records of organizing during the antebellum era to show how free black people occupied a liminal legal status without defined rights. In particular, as they existed between white citizens and enslaved black people, the very possibilities of their existence and daily actions depended upon shifting interpretations of their undefined status, interpretations that were often based on different jurisdictions and geographies. While this unfixed status created dangerous situations for some free black people, for others—especially mobile ones—it led to greater room to maneuver and to bring their legal acumen back to Baltimore. Two cases are particularly illustrative of this tension. In Chapter 1, Jones discussed the case of George Horton, a free black mariner from New York who was presumed to be a run-away slave and detained in Washington, DC, and whose case was extensively covered by the Freedom’s Journal, a black newspaper with wide circulation among free black people nationwide (including in Baltimore). Once detained, New York officials pressed for Horton’s release, arguing that, as a free black citizen of New York, other jurisdictions across the nation should treat Horton as a free person regardless of their own non-recognition of free black people and the lack of legal clarity at the federal level (p. 32). Horton was released thereafter, yet his release intensified debates about and attempts to restrict further legal recognition for free black people at several state legislatures and at the US Congress.

Compare Horton’s case to that of George Hackett’s in Chapter 3. Hackett was a free black seaman from Baltimore who served aboard the USS Constitution in the US Navy. Free black seamen often served as domestics aboard ships, though the navy had imposed a 5% quota. In the 1820s, it was generally assumed that as long a free black person was considered citizen of his home state, he would be treated as a citizen aboard and abroad, yet this assumption often conflicted with local regulations. Some southern states, for example, had laws in place that “required visiting black sailors to remain confined aboard ship or in the local jail when in a city other than their home port” (p. 52). Such laws created a legal quagmire because the federal government had by this time issued Seamen’s Protection Certificates that ‘proved’ black seamen’s citizenship when in foreign ports. Based on this federally issued document, seamen like Hackett arguably enjoyed more legal recognition abroad than in the United States. Indeed, Hackett enjoyed a long career aboard the USS Constitution and eventually brought his experience working with this legal patchwork of citizenship and rights back home to Baltimore. Jones’ detailed examination of cases and accounts such as Horton’s and Hackett’s mirrored the way free black people in the antebellum era had to acquire intimate knowledge of their uncertain legal standing, whether through publications like the Freedom’s Journal, reports from national ‘colored’ conventions, or simply by word of mouth, in order to carve out some room as they simultaneously inhabited across levels of jurisdiction.

In the second part, Jones analyzed how free black Baltimoreans lived, worked, and jostled for legal recognition across quotidian spaces like churches, bankruptcy courts, and municipal offices. Legal acumen from people like Hackett was increasingly relied upon because free black people’s unfixed legal status was being regulated in many domains and thus becoming more fixed (though not any less incongruent across domains). Chapter 5, for example, highlighted black churches as a space where free black people could acquire legal knowledge from their congregation, but also where disputes could arise that led to them looking to the law in order to settle these disputes. While Maryland, like other slaveholding states, tightly regulated the ability of free black people to hold public meetings, the city of Baltimore had a more lax policy where permits were often issued with just a white preacher’s support (p. 79).  Several black churches had disputes among their leaders, as well as between church leadership and their congregants, involving matters such as misappropriation of donations, conflicts over real estate properties, governing statutes, and legal incorporation of religious bodies; many of these disputes ended up in the city courthouse. Crucial to such dispute resolution is that, by being sued and suing others at the local courthouse, free black people were taking what they had learned from religious tribunals to make “citizenship-like claims” publicly (p. 88). Similar conclusions could be made from bankruptcy proceedings involving free black people, as discussed in Chapter 7.

Disputes and proceedings settled in the courthouse were results of a more positive regulation of race and rights, and free black Baltimoreans gained legal insights and practices from them. On the other hand, the unjust ‘black laws’ that Maryland and many other states enacted represented a much more negative regulation, considering that the idea of birthright citizenship had been fully formed by the early 1850s (p. 90). The Second Amendment guaranteed the right for citizens to bear arms, and at this time the Supreme Court was starting to lay out citizens’ right to interstate travel. In these two instances, black laws stipulated that free black people, unlike their white counterparts, had to apply for documents in order to enjoy these rights. Even though Maryland’s black laws were infrequently enforced in Baltimore, many free black Baltimoreans still voluntarily applied for travel permits and gun licenses. Jones argued that, while these black laws were undoubtedly unjust, free black Baltimoreans submitted themselves in these legal applications because the practical outcomes rendered themselves to be like a citizen bearing those rights. These permits and licenses allowed free black Baltimoreans to enact a performance of rights alongside national abolitionist calls for recognition of birthright citizenship, which would render these documents obsolete. Negative regulation like the black laws produced compromising effects to free black lives and were universally reviled, but unlike some white abolitionists, free black Baltimoreans generally saw their compliance as a performance that brought them “that much closer to citizenship” (p. 107).

If citizenship is “a bundle of rights… then [free] black Baltimoreans were in possession of some part of that bundle” during the antebellum era, however tenuous and limited that possession might be (p. 107). Once birthright citizenship became enshrined in the Constitution, all born in the US would have that full bundle guaranteed by birth, at least on paper. Although birthright citizenship had a somewhat muted effect on free black Baltimoreans’ daily lives in the immediate aftermath of Reconstruction, we could still see from the vantage point of Baltimore one dramatic result that those black Baltimoreans had fought for. During the entire antebellum era, the threat of removal from the United States had always hung over free black people. Those enslaved had clear grounds to be present in the United States as properties of white citizens, but if free black people had no fixed legal status as citizens, then their very physical presence had no clear grounds either, as reasoned by some white jurists. Jones discussed such threats of removal primarily in Chapter 2, though I wish this thread of argument, along with a parallel of unfixed citizenship status and removals of Native Americans (Volpp, 2015), could have featured more prominently. Many white politicians had actively advocated for free black people’s ‘return’ during the antebellum era, and some free black people—like those persuaded by the American Colonization Society—also emigrated to places like Haiti and Liberia. Therefore, black ideas about and arguments for birthright citizenship are, at their core, free black people’s explicit assertation that they belong to the United States unconditionally. This unreserved assertion for national belonging, as Jones brilliantly argued in Birthright Citizens and elsewhere, is the lasting legacy of birthright citizenship in the United States (e.g., Bloemraad, 2013) and, especially for those with similarly contested legal status today, must be protected and fought for every day.

Works Cited

Bloemraad I (2013) Being American/becoming American: birthright citizenship and immigrants’ membership in the United States. Studies in Law, Politics and Society 60: 55–84.

Ngai MM (2007) Birthright citizenship and the alien citizen. Fordham Law Review 75(5): 2521–2530.

Volpp L (2015) The indigenous as alien. UC Irvine Law Review 5(2): 289–325.