Opponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners.
However, reliance on these fragments is a mistake.
Opponents of birthright citizenship face a number of difficulties that have encouraged them to rely on those fragments. They are:
* Language in the earlier Civil Rights Bill clearly excluding foreigners was deleted from the amendment. This change was not, as sometimes claimed, necessary to exclude tribal Indians.
* Any interpretation that excluded foreigners would undercut the principal purpose of the Citizenship Clause. That purpose was to grant citizenship to the newly freed slaves and their children. For reasons explained below, most (perhaps all) of those slaves were legally foreigners.
* As I explained recently, in two cases the U.S. Supreme Court has decided that the Citizenship Clause’s term “subject to [U.S.] jurisdiction” means subject to the English common law doctrine of “allegiance.” In general, that doctrine recognizes most children born in a country as natural born citizens, including the children of visiting foreigners. And in the more crucial case, United States v. Wong Kim Ark, the allegiance rationale was central to the holding, not mere “dicta” as sometimes asserted.
The best way to counter these problems would be to uncover evidence that state legislatures ratifying the Fourteenth Amendment understood “subject to the jurisdiction thereof” to exclude foreign visitors and their children. It is the understanding of, or meaning to, the ratifiers—not the intent of the drafters—that carries most weight in constitutional questions. Fragments from the congressional debates are not only weak evidence of meaning, but relying on them may be counterproductive.
The two most cited congressional comments are those by Senator Jacob Howard of Michigan and Senator Lyman Trumbull of Illinois, both proponents of the amendment. Howard’s comments have been taken as excluding all resident foreigners from the phrase “subject to the jurisdiction.” Trumbull said that the phrase meant “Not owing allegiance to anyone else.”
But anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous. He said the amendment’s phrase “subject to the jurisdiction thereof” would exclude:
persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of person.
This could mean that the exclusion covers “foreigners and aliens and those who belong to the families of ambassadors.” But also could mean “foreigners [or] aliens who belong to the families of ambassadors.” (Remember that the punctuation was not Howard’s, but the shorthand reporter’s.)
Even if Senator Howard did mean to exclude all foreigners, the congressional debates show that others disagreed with this interpretation. Senator John Conness of California, another supporter of the amendment, specifically claimed it would grant citizenship to children of resident Chinese—and no one contradicted him.
Moreover, participants in the congressional debates were focusing on tribal Indians, especially those in the territories, not foreigners. The amendment’s proponents argued that Indians were outside U.S. jurisdiction because they were subject to their own governments and therefore were not directly subject to the jurisdiction of U.S. courts. Senator Trumbull’s comment was made wholly in this context; there is no evidence that he was referring to foreigners. Here is some of what he said:
[Tribal Indians] are not subject to our jurisdiction, in the sense of owning allegiance solely to the United States . . . We have had in this country and have to-day a large region of country with the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.
Senator Howard’s approach was similar:
. . . [T]he 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, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department: that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. . . The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.
Insofar as one can divine a consistent understanding of “subject to the jurisdiction” from these debates, it appears to mean “subject to American judicial process and the law.” Tribal Indians and diplomats were not subject to either one, and therefore were outside U.S. jurisdiction in the sense that term was used in the amendment. But aliens within the borders of the U.S.—legally or illegally—are subject to both.
Reading the amendment to grant citizenship to the children or other descendants of resident foreigners may, in fact, have been necessary to accomplish its purpose. In 1868, when the amendment became effective, some former slaves had been illegally imported from Africa, and therefore were foreigners. They remained citizens of the tribe or nation into which they had been born.
Most of the other former slaves also were legally aliens: They were the descendants of foreigners; neither they nor their ancestors had ever been naturalized. Because they were slaves they could not take advantage of the common law rules of allegiance to claim natural-born status. In fact, under the rule issued by the Supreme Court in its notorious 1857 Dred Scott decision, all African-Americans living within the United States, whether or not enslaved, were legally foreigners. Arguably, then, the Citizenship Clause could not have accomplished its goals of overruling Dred Scott and affirming citizenship for African-Americans if it had excluded foreigners and their progeny.
This interpretative mess is one symptom of the generally poor way in which the Fourteenth Amendment was drafted. During the congressional debates, Senator Reverdy Johnson of Maryland begged his colleagues to be as precise as possible:
But I conclude by saying that when we are trying to settle this, among other questions, for all time, it is advisable—and if my friend will permit me to say so, our clear duty—to put every provisions which we adopted in such plain language as not to be capable of two interpretations, if we can.
His colleagues disregarded his advice. As a result, we have been arguing about the meaning of much of the Fourteenth Amendment ever since.