When we distinguish between immigrants and native-born Americans today, citizenship provides a firm dividing line. Everyone born within the national territory is a citizen of the United States (with the exception of the children of foreign diplomats). People born abroad can become citizens through naturalization; they can acquire the status of non-citizen resident aliens (“green card” holders); they can reside in the United States on temporary visas; or they can stay in the country without legal permission. The Constitution gives rights to “people” as well as citizens, but the further away one stands from the dividing line of national citizenship, the fewer civil and political rights one enjoys.
The Constitution, however, included no definition of national citizenship until the ratification in 1868 of the Fourteenth Amendment, which granted citizenship to all persons born in the United States (“birthright citizenship”) and to all immigrants eligible for naturalization. Before that, state laws and policies were much more important than national citizenship as markers of inclusion and exclusion. Moreover, the federal government did not become active in regulating immigration until after the Civil War, other than a few laws regulating passenger conditions and limiting naturalization to free white immigrants (a right that was extended to people of African, but not Asian, descent in 1870).
In this context, the most important dividing line between insiders and outsiders was not native or foreign birth but race.
In 1854 the Supreme Court of California delivered its ruling in The People v. Hall. The ruling came only three years before the notorious case of Dred Scott v. Sandford, in which the U.S. Supreme Court declared all Americans of African descent, slave or free, ineligible for national citizenship. The People v. Hall drew an equally stark racial boundary.
George W. Hall, a free white citizen, was convicted of murder on the testimony of Chinese witnesses. On appeal, the California Supreme Court overturned the conviction, ruling that under a state law passed in 1850 the legislature had intended to include Chinese people among those prohibited from testifying in criminal cases involving whites. This act provided that “No Black or Mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man.” A similar prohibition applied in civil cases. Under both forms of law, the protection against testimony applied to white non-citizens as well as white citizens. It would be anomalous, the court declared, to allow “a race of people whom nature has marked as inferior” and “whose mendacity is proverbial” to testify against white people, let alone to acquire civil and political rights.
The best recent science, the court explained, had established that there were three races of men: White, Black, and Indian. The Chinese fell into the latter category, which included everyone “of the Mongolian type.” As racial categories were fixed by nature, the California statute applied not simply to those who were present in the state in 1850 but to all subsequent interactions between the three “great types of mankind.” If this were not so, newcomers from Africa or Asia could testify against white citizens and immigrants, who would have no protection from “the corrupting influences of degraded castes.” And if such people were allowed to testify, soon enough they would demand “all the equal rights of citizenship,” including the right to serve on juries and in elected office. This spectacle, the court warned, was “an actual and present danger.”
It could hardly be supposed, the court concluded, that the legislature in 1850 had intended merely to exclude “domestic negroes and Indians” from testifying against whites, while “turning loose upon the community the more degraded tribes of the same species, who have nothing in common with us, in language, country or laws.”
The most revealing word here is “community.” The court’s ruling did not rest on a distinction between foreigner and native-born. Instead, the justices drew a racial line between those to whom the state accorded rights and those to whom it did not, regardless of place of birth. The distinction in California was between all whites (non-citizen as well as citizen) and everyone else.
Those who had rights included white foreigners as well as the native-born white majority. European immigrants, unlike the Chinese (regardless of where they were born), could testify in court. And in other states, though not in California, European immigrants could vote before becoming citizens, provided they had declared their intention to naturalize.
Conversely, those whose rights were restricted or removed included many native-born Americans as well as some immigrants. African Americans, Mexican Americans, and Native Americans, though born on American soil, fell on the wrong side of the dividing line in The People v. Hall, along with Chinese immigrants and their children. California’s passenger laws and its Foreign Mining Tax, based on a similar logic, targeted only immigrants ineligible for naturalization.
Today, because of the Fourteenth Amendment and reforms to naturalization law, almost everyone born in the United States is a citizen and almost every immigrant can become one. The line dividing insiders from outsiders is based on who is a citizen and who is not.
This does not mean, of course, that racial categorization no longer operates as a dividing line in immigration. But it operates in a different way. National citizenship is important: it protects rather than excludes, and it comes with fundamental rights the states cannot touch. Proposals to invalidate birthright citizenship today seem implausible. But, given the alternative view of community articulated in the nineteenth century, these proposals are also dangerous.