Until Justice Be Done by Kate Masur

Author:Kate Masur
Language: eng
Format: epub
Publisher: W. W. Norton & Company
Published: 2021-02-13T00:00:00+00:00

AMID THE POLITICAL FERMENT of the 1850s, the question of whether the US government recognized free African Americans as national citizens also came to the fore. Until then, much of the debate about African Americans’ legal status as citizens had revolved around the Constitution’s privileges and immunities clause, which referenced “the citizens of each state.” Yet citizenship had always had different, more national meanings as well. The Constitution alluded to US citizenship in several places. It required that the US president be a “natural born” citizen of the United States. It also gave Congress power to establish a “uniform rule of naturalization,” meaning that Congress could determine how noncitizens became citizens of the nation. When the United States acquired new territory from foreign powers, Congress made treaties in which it declared inhabitants of newly acquired territories “citizens of the United States.” The 1848 Treaty of Guadeloupe Hidalgo, for example, gave residents of the territories acquired from Mexico one year to declare their desire to remain Mexican citizens. If they did not, the treaty stipulated, they “shall be considered to have elected to become citizens of the United States.”41

The question of whether the United States government considered free African Americans citizens in this more national sense had never been answered. The issue arose dramatically in 1849, when two Black men applied to the State Department for US passports, were denied, and protested vehemently. In the first several decades of American nationhood, consistent with prevailing ambiguities about citizenship and evolving international norms about documentation, the State Department had not viewed passports as certificates of citizenship and thus had issued the documents to a range of people without much consideration of their citizenship status. By the 1840s, amid growing foreign immigration and opportunities for Americans to travel abroad, the department sought to regularize its policies and tighten the link between passports and US citizenship. In that context, Secretary of State John M. Clayton, a Delaware Whig, declared in 1849 that free African Americans were ineligible to receive US passports, and he claimed, incorrectly, that the department had never issued passports to people of African descent.42

Five years later, as a US senator, Clayton described his surprise at the outcry evoked by his decision. He explained to the Senate that he had refused African Americans’ requests for passports on the grounds that only US citizens could receive such documents, and that only white people could be US citizens. Although he thought the policy was reasonable and necessary, he was “assailed by a great portion of the northern press, and by many responsible persons at the North, who seemed to think that the point was not correctly settled at the Department.” Their responses showed him that “a very respectable and considerable portion of the people of the northern States” believed that free Black people were US citizens.43 The argument would only intensify as African Americans and their white allies continued to protest the government’s refusal to acknowledge their citizenship, and as Congress continued to grapple with legislation that required decisions on the matter.

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