5 - The Rise of the Federal Immigration Order

Summary

Introduction

The Civil War resulted in a major recalibration of federal vis-à-vis state authority, making the United States a more centralized polity than it had been. In significant part, this had to do with the postwar federal government's new role in articulating and defending the rights of freedmen. In the decade that followed the conclusion of the War, a Radical Republican–dominated Congress pushed through three constitutional amendments and a raft of major civil rights statutes. These initiatives were directed at ending slavery, enabling newly emancipated slaves’ formal incorporation into the polity, and guaranteeing them a measure of protection against violence, exploitation, and discrimination in the defeated South.

The results were, to say the least, mixed. As a formal politico-legal institution, slavery disappeared. But in many other respects, Radical Republicans’ solicitude for freedmen encountered stiff resistance. John Wilkes Booth was driven to assassinate Lincoln, after all, because of the latter's commitment to “nigger citizenship.” Lincoln's successor, Andrew Johnson, claiming that “[negroes] have shown a constant tendency to relapse into barbarism,” worked hard to stymie change. By the beginning of the 1880s, in the midst of political brokering, the promise of Reconstruction had faded.

From the perspective of immigration and citizenship law, however, the postwar constitutional order brought about a change of critical import. Ratified in 1868, the Fourteenth Amendment to the U.S. Constitution provided: “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.” The Fourteenth Amendment thus formalized the common law jus soli principle that had hitherto operated unequivocally only for native-born whites and made it theoretically applicable to all. It also made state citizenship follow from national citizenship as a function of residence, and thus took away states’ ability to declare native-born blacks non-citizens. Although there would be struggles over the precise contours of the Fourteenth Amendment's jus soli principle in the decades that followed, it unambiguously put an end to one of the most egregious forms of internal foreignness: that imposed upon native-born blacks.