Before the Civil War Only Whites Could Become Naturalized Citizens: Would that Change?

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The half-decade after the Civil War was a time of intense debate of the question of who exactly was an American and how one became American. Roughly a quarter of white native-born American men had risen up against the United States government and tried, through acts of extreme violence, to detach a third of American’s landmass into the Confederate States of America. Did those who participated in armed rebellion forfeit their citizenship as a result? Did African Americans, who had been declared non-citizens by the Supreme Court in the 1857 Dred Scott Decision win their citizenship by defending the American flag with their lives?1

Dred Scott-In this 1857 decision Roger Taney, the Chief Justice of the Supreme Court, said that black people had “no rights which the white man was bound to respect.”

And what of the citizenship of immigrants? Tens of thousands of immigrants had rioted against the draft in 1863 and half-a-million had served in the Union Army. What did the United States owe to the loyal immigrant and how did it protect itself against the rebellious? In the next two articles I will look at the change in the way that immigrants become citizens that took place in 1870.2

The process of becoming a citizen is called “Naturalization.” It is the way an “alien” assumes the same status of United States citizen as the natural-born American. Congress’s decisions in drafting the Naturalization Act of 1870 would have profound consequences for the development of American democracy for the next seven decades.3

In the 21st Century many Americans simply take for granted the idea that the Federal government has the power to regulate immigration. The Constitution as drafted by the Framers, however, was completely silent on the subject of immigration. Nothing in the Constitution authorized the government to restrict immigration or deport immigrants. Visas, border patrols, and immigration courts are not even hinted at anywhere in the founding document. The Constitution does, however, speak briefly of naturalization. Article I, Section 8, Clause 4 allows Congress to establish a uniform rule for naturalization.4

Chinese immigration began in 1848. By the late 1860s several thousand Chinese were arriving annually to work on the Transcontinental Railroad.

When the first Congress wrote a “uniform rule for naturalization” in 1790 it created a threshold for becoming a citzen vastly easier to cross for most immigrants than the modern naturalization process and impossible to ever meet for many others.5

Under the modern naturalization process, most applicants have to have lived as permanent residents in the United States for five years or more. Under the 1790 law they only had to live here for two years. Today immigrants have to pass tests of English-language competency and knowledge of civics. The founders of the country never required immigrants to know English before becoming citizens and there was not test of civics. At the time, large numbers of immigrants spoke German and French.6

The biggest difference between naturalization in 1790 and naturalization in 2018 is who was responsible for approving naturalizations. Today, a permanent resident applying for naturalization files a detailed twenty page form with the U.S. Citizenship and Immigration Service (USCIS) of the Department of Homeland Security. The immigrant pays a fee of $645 to pay for background checks and processing. The applicant is fingerprinted and subjected to biometric vetting against law enforcement and CIA databases. Typically, after six months or more the immigrant is interviewed in person by an officer of the Department of Homeland Security and then either recommended for naturalization or rejected.7

Under the 1790 Act, there was no real process for naturalization. The immigrant merely went before any judge of virtually any court after living here for two years. The court did not even have to be a Federal court. Any state court judge could naturalize immigrants. If the immigrant satisfied the court that he lived in the U.S. for two years and was of good moral character, he would be sworn in. No tests, no background checks, no English-language requirements. Immigrants quickly learned which judges performed naturalizations without asking any questions. Since judges were usually elected, political parties encouraged their judicial candidates to naturalize without restrictions to help secure the immigrant vote. A state court judge who denied immigrants’ requests to naturalize might soon be voted out of office.8

In 1870 there were 63,000 Chinese-born immigrants living in the United States out of a total immigrant population of five and a half million. Although the number of Chinese in this country was miniscule compared to the Irish or Germans, their racial difference stigmatized them.

The one way the 1790 Naturalization Act was tougher was in restricting naturalization to only someone who was a “free white person.”  With tens of thousands of Chinese immigrants arriving in California after the discovery of gold there in 1848, for the first time in American history a large number of non-white immigrants were cut off from the blessings of democracy. By 1870 there were 63,000 Chinese living in the United States.9

The naturalization laws would change little over the next seventy years, apart from increasing the waiting period for immigrants to apply for citizenship from two to five years. Then, in 1870, Congress took up the rewriting of the naturalization law.10

In 1868, the states had ratified the 14th Amendment to United States Constitution which established that virtually anyone born within the territory of the United States, except Native Americans, was a United States citizen by birth. The Dred Scott decision had excluded persons whose ancestors had been slaves, African Americans, from citizenship. The 14th Amendment overturned this racial exclusion and declared that no matter what the race or legal status of the parents of a child born in the United States, that child was a United States citizen. While the 14th Amendment called for a color-blind application of the law, it did not change who could naturalize. That needed to be done by a separate act of Congress.11

Many of the same Congressmen and Senators who had voted for color-blind birthright citizenship would now consider whether naturalization should be color-blind as well.12

Sources:

    1. 1. Closing the Gate: Race, Politics, and the Chinese Exclusion Act by Andrew Gyory published by The University of North Carolina Press (1998); The Trial of Democracy : Black Suffrage and Northern Republicans, 1860-1910 by Xi Wang published by University of Georgia Press (1997); Guarding the Golden Door: American Immigration Policy and Immigrants since 1882 by Roger Daniels published by Hill and Wang (2004); Coming to America: A History of Immigration and Ethnicity in American Life by Roger Daniels published by Harper Perennial 2 Edition (2002); Lost Century of American Immigration Law (1776-1875) by Gerald Neuman 93 Colum. L. Rev. 1833 (1993); Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era by Christian Samito published by Cornell University Press (2009)

    2. Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era by Christian Samito published by Cornell University Press (2009)
    3. Becoming American under Fire: Irish Americans, African Americans, and the Politics of Citizenship during the Civil War Era by Christian Samito published by Cornell University Press (2009)
    4. U.S. Constitution Article I, Section 8, Clause 4

    1. Naturalization Act of 1790
    2. Naturalization Act of 1790
    3. Naturalization Act of 1790
    4. Naturalization Act of 1790
    5. Naturalization Act of 1790  Guarding the Golden Door: American Immigration Policy and Immigrants since 1882 by Roger Daniels published by Hill and Wang (2004); Coming to America: A History of Immigration and Ethnicity in American Life by Roger Daniels published by Harper Perennial 2nd Edition (2002)
    6. Naturalization Act of 1795; Naturalization Process in U.S.: Early History By Eilleen Bolger
    7. 14th Amendment Section 1
    8. Coming to America: A History of Immigration and Ethnicity in American Life by Roger Daniels published by Harper Perennial 2nd Edition (2002)

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