The Supreme Court just fumbled a basic question about birthright citizenship

If you arose Friday morning thinking the U.S. Supreme Court would finally settle the question of birthright citizenship, you were disappointed. We know no more now than we did Thursday about how Chief Justice John Roberts’ court regards children born here: The liberal three-justice minority is certain all are citizens, while the conservative six-person majority remained mum. That conservative majority avoided addressing the constitutionality of President Donald Trump’s executive order restricting birthright citizenship and chose instead to reject so-called “universal injunctions” blocking his executive order.

All we learned Friday is that a final resolution to the question of birthright citizenship is somewhere in the distance.

All we learned Friday is that a final resolution to the question of birthright citizenship is somewhere in the distance, beyond many more rounds of court proceedings.

For families directly targeted by Trump’s Jan. 20 executive orderwhich aims to bar children born to nonpermanent residents from automatic citizenship, too little has changed. Such families — and especially their yet-to-be born children — remain in the crosshairs of a dispute that will continue unresolved at least for months to come. Going forward, such families will be subjected to harrowing circumstances, not knowing where they stand before the court and the Constitution.

By some accounts, we are five months into this era of uncertainty regarding citizenship. But we have endured years, decades, even centuries of confusion about citizenship.

We know that Trump intended to do away with birthright citizenship seven years ago, even though details were lacking. Consult the Congressional Record, and you’ll discover that the language in Trump’s executive order is similar to the language of bills that have been put forward every session since at least 2003. Scour law review articles and you’ll learn that as far back as the 1980s, some legal scholars have promoted the view that children of noncitizens born in the U.S. cannot be birthright citizens.

This longer view of the dispute over birthright citizenship helps explain why we, in this moment, feel so worn down by the evasion that is Friday’s Supreme Court decision. How long should Americans, especially children born in this country and their families, be expected to endure such indecision, confusion and uncertainty?

Perhaps we should not be surprised to find Roberts’ 21st century court fumbling the birthright citizenship question. Indeed, the origins of birthright citizenship in the United States are in the ignoble ineptitude of lawmakers two centuries ago. In early America, free Black Americans, nonimmigrants, were a despised group, and they were regularly confronted by those who argued that they were not citizens and thus had no rights before the courts or the Constitution.

It was a harrowing existence. In the nation’s early years, the American Colonization Society organized to press free Black Americans to leave the country, to places such as the West African colony of Liberia. The ACS outfitted ships, funded travel and encouraged Black Americans to self-deport, all to preserve the U.S. as a white man’s country. State lawmakers and local officials played their part, enacting so-called Black laws that constrained everyday life — where they worked and worshipped, how they traveled and raised their children — all to further encourage free Black Americans to leave.

Were free Black Americans citizens? They believed so and looked to the terms of the Declaration of Independence and the Constitution for authority. All men were created equal, they insisted. The Constitution recognized birthright citizenship and drew no color line, they urged. Today, we can read their ideas in early American newspapers, pamphlets and books. They are to be credited with promoting the terms of their own belonging, and those of all persons born in the United States. Their rallying cry: Citizenship in the U.S. was the result of birth, no more and no less.

Early American lawmakers failed Black Americans, leaving them to make families, lives and communities in the face of profound uncertainty.

Early American lawmakers failed Black Americans, leaving them to make families, lives and communities in the face of profound uncertainty. For example, in 1821, when Congress considered admitting Missouri into the Union, lawmakers asked whether Black Americans would have the right to enter the new state. Only if they were citizens, it was said, and a debate ensued with representatives taking both sides. The result was a twisted injustice: Congress never firmly answer the question and instead admitted Missouri while leaving Black Americans mired in ambiguity.

Also in 1821, U.S. Attorney General William Wirt was asked to resolve whether a free Black man could command a ship in Virginia’s coastal waters. The law provided that he could only if he were a citizen. Thus, Wirt was charged with solving the riddle of Black citizenship. But he did not. Instead, he reached a twisted conclusion: In Virginia, a free Black man could not be a citizen, but in another state he perhaps could. Once again, Black Americans were left to make lives under murky circumstances.

Notoriously, in the 1857 Dred Scott casethe U.S. Supreme Court concluded that no Black American could be a citizen. Or at least this is how the story is often told. A closer look reveals that the nation’s high court was deeply divided in that instance. Justice Roger Taney was sure that Black Americans were not birthright citizens. Still, his fellow jurists, Associate Justices Benjamin Curtis and John McLean, took the opposite view. Birthright, they concluded, was the law of the land and, absent a color bar in the Constitution, Black Americans, like their white counterparts, were citizens. The high court failed to settle much at all. Black Americans might be citizens to some, but to others they were subject to Black laws and colonization.

It would take a Civil War and a remaking of the Constitution during Reconstruction to settle debates over Black citizenship. The 14th Amendment constitutionalized the birthright principle that Black Americans had long championed. Along the way, Black Americans learned hard lessons, and so should we. The nation’s founding documents can be subjected to interpretation and reinterpretation in the hands of lawmakers, courts and the executive branch. Those designated as despised can be variously regarded as citizens and noncitizens, while lawmakers fumble and fail to settle the debate.

Those designated as despised can be variously regarded as citizens and noncitizens, while lawmakers fumble and fail to settle the debate

Most of all, by recalling the struggles of Black Americans for birthright citizenship, we better understand that uncertainty before the law is its own form of inhumanity. Being the object of debate is its own sort of harrowing existence. In early America, Black Americans made homes, raised children, established businesses and built a political culture — all the while facing down efforts to banish, exile or otherwise remove them from the nation. We rightly admire their courage and persistence. At the same time, we can recognize the price they paid for being subject to the deliberations of lawmakers who avoided, sidestepped, punted and otherwise refused to settle their status as birthright citizens.

Friday, the nation’s high court fumbled. Rather than affirm the birthright principleit put that question off for another day. In the months ahead, there will be briefs filed and arguments presented. At the same time, there will also be harrowing days ahead for immigrant Americans and their children, people who urgently await a determination of their standing as birthright citizens before the Constitution.

As a nation, we owe them at least that.

Martha S. Jones

Martha S. Jones is the Society of Black Alumni President Professor and Professor of History at The Johns Hopkins University. She is author of the prize-winning “Birthright Citizens: A History of Race and Race in Antebellum American” (2018, Cambridge University Press.) She is also the author of an amici cruise brief on the subject of birthright citizenship along with historian Kate Masur.