Birthright Citizens: A History of Race and Rights in Antebellum America by Martha S. Jones (review)

In the summer of 1827, William Watkins, a black minister, educator, and activist in Baltimore, paid a visit to John H. B. Latrobe, a well-connected local lawyer and philanthropist. Watkins had helped found the city’s Legal Rights Association, an organization aimed at protecting the rights of free blacks, and the mayor of Baltimore had imposed an 11 p.m. curfew on all people of color in the city. Watkins asked Latrobe to give him a legal opinion on whether such an ordinance was constitutional. We do not know what position Latrobe took, but the fact that Watkins and the Legal Rights Association sought an opinion on this matter speaks volumes.

In this pathbreaking study, Martha S. Jones has uncovered how black Baltimoreans used the law beginning in the 1780s to challenge second-class citizenship, protect their fundamental rights under the Constitution, and resist the racist presumptions that would eventually mark Roger B. Taney’s opinion in the Dred Scott case. Birthright Citizens is less a history of race than a history of rights. Baltimore was Taney’s home, of course, and part of Jones’s project is to revise our understanding of Dred Scott by demonstrating conclusively that black Baltimoreans exercised the “privileges and immunities of citizenship” for decades before that notorious decision. They traveled between states, sued and were sued in local courts, testified, made contracts, and had their contracts upheld through the law.

Jones follows black Baltimoreans through their actions in the local courts, in a series of what she calls “disruptive vignettes” (10). These stories are pieced together from the fragments of information recorded in the dockets, minute books, and case files at the courthouse, and in Jones’s capable hands they are fashioned into a narrative that recasts our understanding of how African Americans claimed crucial elements of birthright citizenship long before the passage of the Fourteenth Amendment. Rather than conferred, birthright citizenship was asserted, defended, and to a remarkable degree secured by free blacks in everyday legal actions. The courthouse, Jones argues, was “a place of opportunity.” Even unjust black laws that required free blacks to license their guns could be used to demonstrate citizenship. Filling out the application in the courthouse, standing publicly before the court to obtain it, and coming away with a license were performances that enacted “a citizen’s bundle of rights” (106). With lawyers and judges adjudicating their claims, with court papers in their coat pockets, black Baltimoreans, Jones points out, “looked more and more like persons with rights” (70).

One of the most significant and valuable aspects of Jones’s account is her analysis of how black Baltimoreans responded to the threat of forced colonization. She sets the discussion of colonization in the context of Indian removal and pinpoints 1830–32 as a pivotal moment. In these years the Legal Rights Association turned to William Wirt, the former U.S. attorney general who argued the case for the Cherokee before the Supreme Court in Cherokee Nation v. Georgia. Black Baltimoreans sought a definitive opinion from him on the “rights and citizenship of the free black” under the Constitution (44). They never received one, but every discussion with an attorney like Latrobe or Wirt was a “formative moment for the development of ideas about black citizenship” (45).

In the wake of the Nat Turner revolt, Maryland legislators led by Octavius Taney, Roger Taney’s brother, proposed wholesale removal of all free blacks from the state by legislatively turning them into term slaves preparatory to their removal. Jones calls this scheme “radical colonization” in part because it was to be both compulsory and total. The measure passed the state senate. The house never took it up but instead passed a series of oppressive black laws to control the mobility of free blacks in a naked attempt to drive them from the state. Maryland...