Abstract

Excerpted From: Rebecca E. Zietlow, Fugitives from Slavery, Free Black Activists, and the Origins of Birthright Citizenship, 94 Mississippi Law Journal 1425 (2025) (227 Footnotes) (Full Document)

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist, wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship ....” Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment. Delany was appointed Major in a regiment of Black troops -- the highest rank of a Black soldier in the war. After the war, Delany engaged in political advocacy for the citizenship rights of formerly enslaved people. Delany's theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders. Their activism and sacrifices helped influence the Reconstruction Congress to constitutionalize birthright citizenship and protect the rights of citizenship. Birthright citizenship, established by the Fourteenth Amendment, has been politically controversial in recent years, particularly with President Donald Trump signing a declaration purporting to end this right on the first day of his second term as president. This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

In the antebellum era, Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity. Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Enslaved people had virtually no human rights whatsoever and were treated not as people, but as property by the laws of states in which slavery was legal. Nonetheless, thousands of enslaved people asserted the most fundamental right of citizenship -- the right to travel -- as they crossed state borders in search of human rights. In states in which slavery was not legal, free Black people argued that they were citizens entitled to the protection of their rights, including freedom of movement, which inhered in citizenship. To be a citizen means that you have a right to belong to the community in which you live, and the right to not be treated as an outsider who lacks rights or can be deported. Delany and other free Black activists argued that, as citizens, they were entitled to the equal protection of the law and that racially discriminatory laws denied them that protection. Free Black activists fought laws in northern states which prevented them from voting, serving on juries, and exercising other civil rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty. During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights.

Disputes over the meaning of citizenship rights were thus a central part of constitutional conflicts and controversies in the antebellum era, including disputes over the rights of free Black people and conflicts over interstate comity and federalism. The catalyst for these disputes were fugitives from slavery who crossed state borders in search of freedom and fundamental rights. By crossing state borders, fugitives from slavery asserted freedom of movement, a fundamental human right that is linked to the concept of national citizenship. Many fugitives from slavery who successfully escaped to free spaces became activists in the Anti-Slavery Movement, advocating against slavery and for the rights of free Black people. These activists influenced other antislavery activists, including Black and white antislavery constitutionalists, many of whom made citizenship rights central to their theory of human rights denied by slavery. Some of those antislavery constitutionalists were influential in the founding of the Republican Party, and some became leaders in the Reconstruction era Congress. After the war, members of the Reconstruction era Congress who drafted and passed the Thirteenth and Fourteenth Amendments invoked the rights theories and the sacrifices of free Black activists as they abolished slavery, established citizenship rights for newly freed slaves, and constitutionalized birthright citizenship.

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Birthright citizenship was central to the Reconstruction project of not only freeing enslaved people and protecting their rights but also establishing a more egalitarian republic through statutes and constitutional amendments. Black people in the United States had been claiming birthright citizenship since the beginning of the Republic, but it was denied to them due to their race and ancestry. It is important to note that this did not depend on the loyalty of their parents. Most of them were descended from ancestors who had been brought to the United States against their will, and often illegally. Yet they embraced the country in which they lived and claimed membership for themselves and their descendants, and all persons born within the United States. Notably, the Act did not include the right to vote as one of its protections, as Black civil rights activists had claimed for years. Nonetheless, in every other respect, his act reflected the egalitarian view of citizenship that Delany, Douglass, Yates, and Black antislavery activists had advanced for years, cementing their theories into statutory and constitutional law.

Black people in the United States had been claiming birthright citizenship since the beginning of the Republic, but it was denied to them due to their race and ancestry. Most of them were descended from ancestors who had been brought to the United States against their will, and often illegally. But nevertheless they embraced our country as their own, and with their bodies and their actions they changed our nation so that future generations of people like them could enjoy the same rights to which they believed they were entitled. Enslaved people and free Black activists brought about birthright citizenship, and their views should be taken into account when interpreting the statutory and constitutional provisions that they achieved through their activism. Martin Delany and his allies believed in an inclusive and egalitarian citizenship with broad rights inhering therein. Interpreters of the constitution today should take note when interpreting the meaning of the citizenship clauses today.

Rebecca E. Zietlow, Dean, University of Toledo College of Law.