This is the third installment in a special seven-part series “A Brief History of Nativism: Anti-Immigrant Bigotry in the American Past”, providing an overview of these major movements, as well as the accompanying shifts in American immigration policy and their consequences. The first installment, “Colonial Dreams and Independent Reactions” is available here. The Second installment, "Knowing Nothing in Antebellum America" is available here.
A Brief History of Nativism
Part III: Postbellum Realignment
Overshadowed by the Civil War and Reconstruction, in the 1860s immigration issues once again took a back seat in American politics. Although no anti-immigrant political organization comparable in size to the Know-Nothings appeared in the years immediately following the Civil War, nativists often found that the existing parties were sympathetic and willing to enact their proposals. In spite of this mainstreaming of nativism, the era of Reconstruction also witnessed a crucial development in immigrants’ rights and an important step towards the creation of a truly democratic society. But it took some time.
In 1857, just four years before the start of the Civil War, the Supreme Court of the United States handed down what is known to history as the Dred Scott decision. More than a decade earlier, Virginia-born slave Dred Scott and his wife Harriet had filed suit against their owner in St. Louis Circuit Court. The Scotts, with the support of abolitionist lawyers, argued that they had been held as slaves illegally while residing with their owners in Free States. Then-existent laws in these states granted citizenship, and with citizenship freedom, to slaves residing within their respective territories. By the time the case reached the Supreme Court, it was symbolic of both the growing acrimony between Slave and Free States and of what it meant to be an American.
The notorious ruling in Dred Scott held that as a slave was not a citizen, Scott was not entitled to the protections of citizenship, and had no status to sue in federal court. The High Court clarified, according to the majority opinion written by Chief Justice Taney, that citizens of the United States were of two types: white persons born in the United States as descendants of “persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body,” or those who had been “born outside the dominions of the United States,” and had migrated thereto and been naturalized therein. The legal issue in play was the competence of the various states to confer citizenship. The Supreme Court ruled in Dred Scott that while the various states had the authority to grant state citizenship to anyone residing within said state, the granting of such state citizenship did not confer citizenship in the United States as such. It was, in other words, a geographically limited form of citizenship, so that someone could be a legal citizen of Illinois or Ohio, but still not be a citizen of the encompassing nation-state, the United States. Moreover, according to the Chief Justice, the “Negro,” or person of the “African race,” was by virtue of his race, ineligible to attain United States citizenship under any circumstances. This decision, consistent with the spirit of such classic bits of racist legalism as the Three-Fifths Compromise and the Naturalization Act of 1790, contributed to the growing divide between North and South that eventually led to the Civil War.
On July 9, 1868, eleven years and 620,000 deaths after the Scott decision was handed down, what it meant to be an American citizen was officially revised with the ratification of the Fourteenth Amendment to the Constitution. Section 1 of that Amendment, the bedrock upon which all subsequent civil rights legislation stands, states as follows:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The language of this Amendment, the subsequent laws passed by Congress, and the consequent decisions made by the U.S. Supreme Court codify two important principles of American citizenship.
The first is referred to by the Latin legalism jus soli, meaning by right of birth. Unlike the situation in many European countries, under the explicit provisions of the Fourteenth Amendment and laws related thereto, citizenship in the United States is not contingent upon having ancestors who were citizens. The basis of “native” citizenship is place of birth, not descent — though the children of American citizens born elsewhere are also entitled to citizenship.
The second principle is that the right of citizenship is not contingent upon race but applies to all persons. Moreover, the various states do not have the jurisdiction to restrict such citizenship or to deny the basic rights of citizens.
These are principles of extraordinary importance, simple as they are, for they form the basis for a democratic society. Even more than the machinery of voting and representation, meaningful democracy is based on the idea of equal citizenship which entails equal protection under the law and equal access to whatever machinery of representationexists. This is the point of the Fourteenth Amendment.
What is more — and this is where the story circles back to immigration — under the provisions of the Fourteenth Amendment the rights of citizenship are to be extended not only to persons born in the United States but to those “born or naturalized.” With the sole exception of the constitutionally enshrined provision that the President and Vice President of the United States must be of native birth, all of the rights and responsibilities of citizenship are extended to immigrants after a minimal satisfaction of residency and appropriate application for naturalization.
More than the law of the land, the provisions of the Fourteenth Amendment represent the best of the American tradition: the ongoing struggle to create a free, inclusive, and democratic society.
In 1870, just two years after the ratification of the Fourteenth Amendment, Congress adopted the Nationality Act, which removed the “free white persons” qualification for obtaining American citizenship, and specified that “persons of African nativity and African descent” were eligible to become citizens.
The inclusive impetus, however, was short-lived. As southern whites re-emerged as a political force, they brought the era of Reconstruction to crashing halt and simultaneously ended any push for a less racist immigration policy.
A wave of discriminatory immigration laws was passed not long after the Fourteenth Amendment to the Constitution went into effect, as the nation transferred institutional animosity towards Chinese immigrants. The demise of Reconstruction and the exclusion of Chinese immigrants are interrelated, as “Congress enacted national exclusion laws with the support of both southerners interested in rejuvenating the racial caste system and self-interested Anglos from California.”