Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause

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.