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Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause
Frost, Amanda
Frost, Amanda
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Abstract
The Fourteenth Amendment's Citizenship Clause connected borders,
birth, and egalitarian status to forge a new definition of U.S. citizenship,
freed for the first time from constraints of race and lineage. This Article
locates a forerunner to the Citizenship Clause in antebellum laws enacted
by six northern states under which all persons born within their borders
were deemed free, regardless of their parents' race or enslaved status. In
subsequent freedom suits, courts in these states declared this rule applied
even to children born to fugitive slaves, holding that the child's status
turned solely on location of birth, not the mother's enslavement.
The Article begins by analyzing the development of "birthright
freedom" an antebellum doctrine that was well known at the time to
lawyers, politicians, and at least some enslaved women, who freed their
children by escaping to free states while pregnant. These six states not only
declared the children of slaves born within their borders to be free albeit
required to serve lengthy periods ofindenture to their mother's enslaver
they also mandated that these children be educated, treated as "servants"
(not slaves), and that their births be registered with the state to protect their
free status. The Article then argues that this linkage of location of birth,
legal status, and membership rights provided socio-legal context for the
drafting and ratification of the Citizenship Clause. In conclusion, the
Article describes how the doctrines of birthright freedom and birthright
citizenship have shaped legal rules and social practices around borders,
birth, and status throughout U.S. history.