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What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.Within a week of issuing his immigration reform plan calling for the end of “birthright citizenship,” there has been more discussion (fueled by considerable popular interest) of this poorly-understood aspect of immigration policy than I can remember in my lifetime. Whether or not one agrees with Trump’s platform, one has to concede that he is advancing a national conversation on a critically important issue.

The issue is whether children born in the United States—even if their parents are foreign nationals who entered this country illegally—automatically become citizens. Current law supposes that they do—a concept termed “birthright citizenship.” Many people erroneously think this concept is dictated by the Constitution or enshrined in a U.S. Supreme Court decision. Not so. Section 1 of the 14th Amendment—the Citizenship Clause—states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  (Emphasis added.)

The origins of this language are a bit hazy, but it must be recalled that the purpose of the 14th Amendment was to correct the infamous Dred Scott v. Sandford decision (1857) and recognize citizenship for the newly-freed slaves (but not members of Indian tribes living on reservations).  The language of the Citizenship Clause derived from the Civil Rights Act of 1866, enacted by the same legislators (the 39th Congress) who framed the 14th Amendment. The Civil Rights Act of 1866 conferred citizenship on “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” (Emphasis added.)  Foreign nationals resident in the United States, and children who become citizens of a foreign country at birth (by virtue of their parents’ citizenship) would obviously be excluded from this definition.

Granted, the language of the Citizenship Clause deviates slightly from that of the Civil Rights Act of 1866, but there is no compelling evidence that the 39th Congress intended a different meaning.  In fact, the sponsor of the Citizenship Clause, Senator Jacob Howard (R-MI), stated that its language “is simply declaratory of what I regard as the law of the land already,” explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”  (Emphasis added.)

The record of the debate in 1866 is illuminating. When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

Senator Howard agreed with Trumbull’s explanation, saying:

I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, . . . ; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens).

Parsing the entire debates over the Citizenship Clause in the 39th Congress admittedly presents some occasional inconsistencies and ambiguities, leading reasonable people—on both the Left and Right—to disagree about the meaning of the Citizenship Clause. Conservatives scholars such as John Eastman, Lino Graglia, Edward Erler, and even former Attorney General Edwin Meese, have written in opposition to birthright citizenship. Notably, this point of view is shared by liberal scholars such as Yale Law School Professor Peter Schuck, who coauthored a book with University of Pennsylvania political scientist Rogers Smith, entitled Citizenship Without Consent: Illegal Aliens in the American Polity (1985) making the same argument now embraced by Trump. Federal Judge Richard Posner has called the current practice of birthright citizenship “an anomaly” that Congress “should rethink” because it “makes no sense.” Judge Posner, never bashful, went on to state (in a published decision, Oforji v. Ashcroft, 354 F. 3d 609 (7th Cir. 2003)) that “We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.” Posner volunteered that he “doubt[ed]” whether a constitutional amendment was necessary to change the current practice of birthright citizenship.

Now, in fairness, other respected commentators take a contrary position, including the conservative attorney James Ho. But a considerable body of scholarship supports the view that the Citizenship Clause does not compel birthright citizenship, and that the current practice could be corrected by legislation, pursuant to Congress’ power under Section 5 of the 14th Amendment and Article I, Section 8, Clause 4. Contrary to the assertions of some (including the editorial page of the Wall Street Journal and Ben Domenech, publisher of The Federalist), amending the 14th Amendment is not required. In fact, such legislation has been introduced in the past—for example,  S.1351 (1993), H.R.1567 (2003), H.R.140 (2015)—and supported by Republicans and Democrats. That includes former Senate Majority Leader Harry Reid (D-NV), who stated in 1993 that “no sane country” would grant citizenship to the children of illegal immigrants solely because they were born on American soil. In Oforji, Judge Posner stated that “I hope [H.R.1567] passes.”

The U.S. Supreme Court has never ruled in favor of birthright citizenship for the children of illegal immigrants. The oft-cited United States v. Wong Kim Ark (1898) involved the offspring of a Chinese couple present in the United States legally. And the frequently cited language from Plyler v. Doe (1982)—a 5 to 4 decision written by the activist Justice William Brennan, hardly a strong authority—is dicta contained in a footnote! Automatic birthright citizenship for tourists and illegal immigrants is an anomaly; the United States and Canada are the only developed countries in the world to recognize it. No European country does. American voters overwhelmingly oppose birthright citizenship, by almost 2 to 1 according to a recent Rasmussen poll. Regardless whether one supports Donald Trump for President, he has raised an important issue and provoked a long overdue discussion of the subject of birthright citizenship. For that, he deserves credit.

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