During the oral arguments in the birthright citizenship case, Trump v. Barbara, Justice Barrett posed the following interesting question:
General, you said in your reply brief that the children of slaves who were brought here unlawfully, you know, in defiance of laws forbidding the slave trade, would, in fact, be citizens….And you can imagine that their parents were not only brought here in violation of United States law but were here against their will and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the Fourteenth Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens. But that’s not textual. So how do you –how do you get there? You say it in just a few sentences, so can you elaborate?
Generally speaking, the domicile of a slave simply followed that of the master. But Justice Barrett raised the specific issue of smuggled slaves, and that question is not quite so simple, so I would like to explain why the general rule still applied. On this point, I disagree with a recent blog post by Professor Ilya Somin.
From about 1808 to 1819, the federal government fought the slave trade by stopping slave ships, prosecuting the smugglers, and seizing the kidnapped Africans. Congress delegated to the states authority to decide the fate of those intercepted Africans, and so the southern states held auctions, in which case it’s very difficult to suggest that the federal government could subsequently deport them. The Feds never tried to do so, and they would have faced obstacles like the Takings Clause and equitable estoppel if they had tried. Smuggled slaves who were lawfully auctioned had domiciles that followed those of their masters, just as happened for other slaves. The states, with the permission of Congress, thus made a decision to accept these people into the country as slaves rather than deporting them, in contrast to illegal immigrants today whom Congress has not accepted.
Slaves who were smuggled into the country successfully between 1808 and 1819, without being stopped by the federal government, weren’t really in the country unlawfully, but rather were in the country via a route different from the one prescribed by Congress. Perhaps the enslavers who bought them did not acquire a perfectly valid title, but if the title was never challenged in court and/or the enslavers did not know that these Africans had been smuggled in, then it became a matter of prescription; the enslaver became a master like any other master, through long use, and therefore domicile of the slave followed that of the master per the usual rule.
Things changed somewhat in 1819 and 1820 when Congress adopted more aggressive policies to stop the slave trade, including designation of the smugglers as pirates, subject to capital punishment. The new laws authorized the President to take expedient measures “for the safe keeping, support, and removal beyond the limits of the United States” of the smuggled slaves. Removal was no longer up to the states. Of course, if slaves were removed from the country instead of doomed to American slavery, then we don’t have to be concerned about the domicile of either them or their descendants, under the Citizenship Clause. But many smuggled slaves were not removed from the country, either because they got permanently stuck in the “safe keeping” phase of presidential enforcement, or because the federal government never found them, just like in the earlier period (1808 to 1819). Again, it was a matter of prescription, the enslaver became a master like any other master, through long use, and so domicile of the slave followed that of the master per the usual rule.
The smuggled slaves thus achieved U.S. domicile, allegiance, and citizenship at last.
Posted at 7:00 PM