The Fourteenth Amendment and Citizenship Clause

Several months ago, there was a big discussion concerning the meaning of the Citizenship Clause of the Fourteenth Amendment. The argument was spurred on by President Trump arguing that the Citizenship Clause did not guarantee citizenship to the children of illegal aliens and that the policies stating as such could be revoked by a law by congress or possibly just an executive order. Since then, the whole issue has fallen off the map and not been brought up, making some believe it was just a stunt for the midterms. But regardless of whether it has been forgotten or not, there was a lot of discussion at the time and I wanted to weigh in on a few errors I was often seeing.

For reference, here is the first section of the Fourteenth Amendment in which the Citizenship Clause is to be found:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The bolded is the pertinent portion, and its meaning has been debated. Now, the errors I mentioned seeing were specifically the usage of quotes from two Senators, which actually ties in a bit with the previous post of the importance of looking up quotes and seeing context. Here they are:

"This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." -Senator Howard

"The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means." -Senator Trumbull 

Alternatively:

"It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens." -Senator Trumbull

Both of these were stated during the debates on the ratification of the Fourteenth Amendment, with the first being the most important given that Howard was the one who proposed the amendment. Indeed, it is the one most cited, I believe, so let's examine it in context.

The most key phrase, of course, is "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." Not infrequently, a bracketed "or" is added between "aliens" and "who" to supposedly clarify the meaning. However, that is simply reading one's assumptions into the text.

This sentence is confusing in structure. It is not properly constructed and leaves it unclear whether he's saying someone who fulfills all three of those categories is excluded, or if he's listing three separate categories, or if he's using the word "aliens" to clarify the meaning of "foreigners" and thus he's ultimately just saying "foreigners who belong to the families..." and there aren't categories to his statement at all. I have seen various arguments on what he meant by that.

However, this quote did not occur in isolation, and thus there is little need to speculate based on just the language. Its meaning can be proven quite decisively by looking at its context. This quote comes from page 2890 of the Congressional Globe, 39th Congress, 1st Session. One may find that here or alternatively if you'd prefer it in text rather than image, archive.org has put it all into text form here (a quick search for "Mr. HOWARD. I now move to take up House joint resolution No. 127." will pop up the right part). Do note that the second seems to have been a machine scanning it and converting it into text, so a few words are mixed up, most particularly constantly rendering "born" as "bom."

Now for the full context. This begins with Senator Howard giving the above quote. There is a brief aside where Senator Doolittle suggests a change to specify Indians are excluded (while Native American is the more common term nowadays, I will use Indian as that is what is used in the congressional discussion), which Senator Howard essentially blows off. Now we come to the critical part, which is something often skipped over by those who use the above quote from Senator Howard.

Senator Cowan starts talking at this point to complain about the amendment. His reasoning? He thinks it would be a bad idea, because it would allow foreigners to become citizens. His entire speech makes no sense if he believed that Howard meant to exclude children of foreigners. But this particular section of it makes it even more explicitly obvious he believes the Citizenship Clause confers automatic citizenship to children of foreigners:

"Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies."

Note also that he suggests excluding others "besides Indians not taxed", showing that this is a separate issue from Indians, who he regards as excluded under the current text. This pertains to a later point. In the meantime, Senator Conness after this begins speaking and argues against what Senator Cowan just said. He does not say that Cowan's interpretation is wrong. He simply says that his worries as to the result of automatic citizenship of children of non-citizens are unfounded. His speech, much like Cowan's, makes no sense if they did not believe that all children of foreigners became citizens. And, like Cowan, he gives a particular quote that erases all doubt:

"The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States."

The reason for the emphasis on Chinese and California here is because Senator Conness was from California which had a lot of Chinese, but he is clearly indicating that this applies to other foreigners in other states.

Both of these Senators clearly believed that children of non-citizen foreigners were included in the Citizenship Clause as shown by their entire argument on it. No one else came forward to claim their interpretation was wrong, including Senator Howard who has two perfect opportunities: A brief interruption during Conness's speech, and the fact he talks immediately afterwards. It is incomprehensible that if children of foreigners were meant to be excluded, Senator Howard wouldn't simply point that out to end the argument quickly in the multiple opportunities he has.

The simple bottom line is that it despite how you might feel the quote looks by itself, it is abundantly clear from both how Senator Howard's quote was reacted to as well as his own reactions to those reactions that he was saying that only those who belong to the families of ambassadors or foreign sovereigns are excluded. Other foreigners living in the United States qualify.

Now we come to Trumbull's quote, which comes afterwards. After Conness finishes his speech, the matter of foreigner's children being citizens is essentially tabled for a lengthy argument about whether or not Indians living on tribal lands are excluded by the text and a big debate starts over it. I will now give fuller context of Trumbull's quote. I beg the reader's indulgence for the length, but it is necessary to make the point. For the context of the context, this is concerning the suggestion that the words "excluding Indians not taxed" be added to the Fourteenth Amendment to leave it clear that "wild Indians" (i.e. Indians living on reservations or tribal land) are not counted. 

Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.

If you introduce the words "not taxed," that is a very indefinite expression. What does "excluding Indians not taxed" mean? You will have just as much difficulty in regard to those Indians that you say are in Colorado, where there are more Indians than there are whites. Suppose they have property there, and it is taxed; then they are citizens.

Mr. WADE. And ought to be.

Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of  bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.

It seems to me, sir, that to introduce the words suggested by the Senator from Wisconsin would not make the proposition any clearer than it is, and that it by no means embraces, or by any fair construction — by any construction, I may say —could embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our  jurisdiction. We cannot make a treaty with ourselves; it would be absurd. I think that the proposition is clear and safe as it is.

As is clear, this is only in discussing Indians living under tribal sovereignty, who (especially if you read the entirety of the debates) it is obvious were regarded as a special exception to the Citizenship Clause. Indeed, consider this portion: "If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed." This is clearly showing that an Indian who is not living on tribal land and is under the laws of Colorado would qualify under the Fourteenth Amendment to have their children be citizens. It should also be noted that his explanations for why Indians living on tribal land do not count does not apply to your regular illegal immigrants that are living in the United States: Treaties are not made with them, you can sue them, and if one murders or robs another illegal immigrant they can be prosecuted. It should be further noted that this is all backed up even more by Senator Cowan's quote above, in which he suggests they exclude people other than just Indians from the Citizenship Clause, showing a distinction between Indians (on tribal lands) versus foreigners living in the United States itself.

So attempting to quote anything Trumbull says here, or even to bring up the general question of the fact Indians weren't given automatic birth citizenship under the Fourteenth Amendment (this didn't occur until the much later Indian Citizenship Act of 1924), is to completely ignore what was actually stated in the debates. Children born to foreigners living in the United States (excluding ambassadors or foreign sovereigns) become citizens. Children born to Indians living under tribal sovereignty are the only other exception (aside from occupying armies, but that is not at stake here).

There are still arguments one could use to claim that the Fourteenth Amendment does not guarantee birthright citizenship to illegal immigrants. One could argue that the intentions of the drafters do not matter, only what the text says, though given that illegal immigrants are subject to the laws of the country (otherwise why would they be illegal?), that seems like an uphill battle. One could try to argue that there was no such thing as an illegal alien at the time it was passed (laws restricting immigration, surprisingly as it may sound, were not passed until later), so their statements cannot be used to apply to them. I do not personally find such arguments persuasive, but they can be attempted. For a larger defense that the Citizenship Clause gives citizenship to children of illegal immigrants, one may read an article by James Ho here, which goes into additional detail concerning legal precedent. Ironically, James Ho was later appointed as a federal judge by President Trump.

But any attempt to appeal to the aforementioned quotes of Howard or Trumbull, or to bring up the question of the fact Indians born under tribal sovereignty were excluded from the birthright citizenship, is doomed to fail because when examined in context, it is obvious that the quotes mean the exact opposite of what those using them want. Those quotes prove beyond any reasonable doubt that the Fourteenth Amendment was intended to give birthright citizenship to anyone born within the United States, excluding Indians living on tribal land (which is, as stated in the debates, a quasi-foreign nation) or ambassadors/foreign sovereigns. It is highly frustrating to see people who say that original intention is what matters above all else, and then ignore what the clear original intentions of the Citizenship Clause even were.

Again, this is all perhaps several months too late to be relevant. But it is something I wanted to put up somewhere.