Congress Intended to Create Birthright Citizenship Under the Fourteenth Amendment

It's Not Hard to Learn the Intent If One Reads Debates Over the Fourteenth Amendment and Existing Case Law

One of the issues that has come up and is now the subject of tense debate early in the Trump administration is the issue of “birthright citizenship.” Shortly after taking office on January 20, Donald Trump signed a number of executive orders and presidential actions representing the policy priorities of his administration. Among those actions is an executive order that seeks to redefine American citizenship by excluding people born in the United States to an “unlawfully present” mother if the father is not an American citizen or permanent resident.

The source of the controversy is Section 1 of the Fourteenth Amendment to the Constitution, which states: “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.” [Emphasis added.]

Now, reading the plain text of Section 1, there doesn’t seem to be much wiggle room, and Trump’s executive order may be struck down. Nearly two dozen states have already taken legal action against the administration over the executive order, but it could take some time for the case to reach the Supreme Court.

The United States isn’t alone in providing citizenship to all individuals born within its borders. Canada, Mexico, and most other countries in the Western hemisphere recognize the concept of jus soli (or “right of soil”), which derives from English common law, the foundation of American law. However, the first laws that provided a path to naturalization were predominately based on race. For example, only a “free white person” could obtain citizenship by naturalization, but residency and notice requirements were included in laws passed in 1795, 1798, and 1802. Because federal citizenship was separate from state citizenship, states also created laws to determine citizenship for their purposes.

Congress Intended to Create Birthright Citizenship

After the Civil War, Congress passed the Civil Rights Act of 1866, which provided, “That all persons born in the United States and not subject to any foreign power…are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make their rights and enforce contracts, to sue, be parties, and give evidence, to inherit, and obligations purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

Congress also passed the Naturalization Act of 1870, which extended naturalized citizenship to “aliens of African nativity and to persons of African descent.” This marks the first time individuals who weren’t “free white men” or “born in the United States” could attain citizenship through naturalization.

The Fourteenth Amendment was one of the Reconstruction Era amendments and laws passed by Congress to ensure that former slaves were extended rights under the Constitution and to also protect those former slaves against the inevitable incursions on their rights by former Confederate or slave states.

Did the framers of the Fourteenth Amendment intend to confer citizenship on all people born in the United States? Judging from the 1866 debate over the proposed amendment in Congress, the answer is yes. Keep in mind that Section 1 of the Fourteenth Amendment literally says this: “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.” We know this as the Citizenship Clause.

The proponent of that language, Senator Jacob Howard of Michigan, said on the Senate floor (see p. 12 of the PDF, but this is a large file, so it may take time to load), “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.” Howard went further later by clarifying that the language didn’t apply to Native Americans.

During the debate over this specific language, Senator Edgar Cowan of Pennsylvania, who opposed the language, said, “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean? What is the length and breadth?...Is the child of the Chinese immigrant in California a citizen? Is the child of a [Romani] born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than the sojourner in the United States?” Cowan went further to describe a state being “overrun by another and different race,” arguing that states “would have the right to absolutely expel them.” He would further complain that Romani in Pennsylvania “wander in gangs” and “follow no ostensible pursuit for a livelihood.” He painted a picture of “another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies” immigrating to California in such numbers that it would “double or triple the population.” He added, “I do not know if the contingency will ever happen, but it may be well to consider it while we are on this point.”

Cowan also said, “I am unwilling, on the part of my state, to give up the right that she claims, and that she may exercise, and exercise before very long, of expelling a certain number of people who invade her borders; who owe her no allegiance; who pretend to owe her one; who recognize no authority in her government; who have a distinct, independent government of their own–an imperium in imperia; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers wherever they go, and whose sole merit is a universal swindle; who delight in it, who boast of it and whose adroitness and cunning is of such a transcendent character that no skill can serve to correct it or punish it.”

In response, Senator John Conness of California said, “The proposition before us…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 as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”

Cowan’s position on the Citizenship Clause lost. The Fourteenth Amendment was adopted with the language proposed by Senator Howard intact on June 8, 1866. The House subsequently adopted it on June 13, 1866. The requisite three-quarters of the states completed ratification on July 9, 1868.

One may say that Congress didn’t envision “illegal immigration,” as we know it today, and citizenship would apply to only “legal immigrants.” Immigration was, as Senator Cowan noted, largely a state function. The concept of illegal immigration didn’t really exist because immigration was, by and large, open until Congress passed the Chinese Exclusion Act in 1882. Immigration wasn’t regulated in any meaningful sense until the Immigration Act of 1882 and the Immigration Act of 1891. Even with the passage of these laws, immigration into the United States was largely unrestricted, except in certain cases, including those who had committed crimes, had extreme mental illnesses, and communicable diseases.

Again, the debate in Congress clearly shows that the Citizenship Clause intended to bestow citizenship to the children of immigrants. However, Congress isn’t the only branch of the federal government that has spoken on the issue.

The Supreme Court Has Affirmed Birthright Citizenship

The executive order issued on January 20 states, “[T]he Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Looking back to the words of the sponsor of the Citizenship Clause of the Fourteenth Amendment, Senator Howard, we see that this is a woefully poor understanding–if not outright dishonest view–of congressional intent.

Senator Howard was unequivocal about what the phrase “subject to the jurisdiction thereof” meant by excluding the children of foreign diplomats and, later, Native Americans. The Supreme Court did, in the Slaughterhouse Cases (1872), exclude “citizens or subjects of foreign states born within the United States.” That particular aspect of the opinion of the Court wasn’t part of the holding in the case and was considered dictum. At the same time, Slaughterhouse also stated, “Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.” In any event, the dictum in the Slaughterhouse Cases was rendered moot by the Court’s holding in United States v. Wong Kim Ark (1898).

The Court’s holding in Wong Kim Ark is central to the discussion of the Citizenship Clause. The executive order doesn’t mention it, which is truly disingenuous because the failure to acknowledge the Court’s holding in this case is an attempt to ignore the precedent that solidified what was already clear by the plain text of the Citizenship Clause.

As noted, the immigration system, as well as the various classes of immigration we have today, didn’t exist when the Fourteenth Amendment was ushered through Congress and ratified by the states. There wasn’t really a concept of illegal immigration. However, Congress passed discriminatory legislation in 1882, the Chinese Exclusion Act, which paused immigration from China for ten years.

Wong Kim Ark was born in San Francisco in 1873 to, as the Court noted, parents who were “subjects of the emperor of China” and not citizens of the United States, nor were they eligible to become citizens. Wong’s parents did have a residence, but they returned to China in 1890. Wong left to visit his parents in November 1894. He stated his intent to return to the United States when he departed. He returned to the United States in August 1895 but was denied reentry on the grounds that he couldn’t be admitted because he wasn’t a citizen and, therefore, not exempted under the Chinese Exclusion Act. Wong was detained for five months while federal courts adjudicated his case.

Lower courts issued opinions on similar cases in the U.S. Court of Appeals for the Ninth Circuit, including Look Tin Sing (1884) and Gee Fook Sing (1892), and determined that the Citizenship Clause applied to the children of Chinese immigrants. The lower court that heard Wong’s case considered those opinions valid at the time. Thus, the lower court determined that Wong was an American citizen by birth. The federal government appealed the decision to the Supreme Court.

The Supreme Court also ruled in favor of Wong. In doing so, it based its opinion on various factors, including the plain text of the Citizenship Clause and the intent of the framers of both the amendment and the preceding Civil Rights Act of 1866. But it also went further.

First, the Court mentioned that the analogous cases “that a child born in the United States of Chinese parents, subjects of the emperor of China, is a native-born citizen of the United States” were still held in the Ninth Circuit. The Court had previously considered a case, Quock Ting v. United States (1891), related to an individual who claimed he was born in the United States but couldn’t provide sufficient evidence. Justice Horace Gray wrote in his opinion in Wong Kim Ark of the Quock Ting case, “[I]t was assumed on all hands that a person of the Chinese race, born in the United States, was a citizen of the United States. The decision turned upon the failure of the petitioner to prove that he was born in this country, and the question at issue was, as stated in the opinion of the majority of the court, delivered by Mr. Justice Field, 'whether the evidence was sufficient to show that the petitioner was a citizen of the United States,' or, as stated by Mr. Justice Brewer in his dissenting opinion, 'whether the petitioner was born in this country or not.'”

Second, Justice Gray and the Court looked at congressional intent, citing the debate over the Civil Rights Act of 1866, which brings us back to Senator Cowan of Pennsylvania. The Civil Rights Act contained language later incorporated into the Fourteenth Amendment. In fact, the reason Congress passed the Fourteenth Amendment was to ensure that the Civil Rights Act couldn’t be struck down by courts or so easily repealed in the future.

The relevant language of the Civil Rights Act reads, “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude…” It’s easy to say that this was meant to apply only to former slaves and their descendants, but the congressional debate is far more revealing of the intent.

Justice Gray recounted the debate, noting that Senator Cowan asked if language would “have the effect of naturalizing the children of Chinese and [Romani], born in this country.” The sponsor of the Civil Rights Act, Senator Lyman Trumbull wasn’t ambiguous when he replied, “Undoubtedly.” As Justice Gray notes, Trumbull asked Cowan, “Is not the child born in this country of German parents a citizen?” Cowan, revealing his prejudices, said, “The children of German parents are citizens; but Germans are not Chinese.”

Again, Trumbull didn’t leave in doubt in his response. He said, “The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.” He successfully kept the language “of every race and color” in the bill, which became law after Congress overrode President Andrew Johnson’s veto. As already noted, the same debate would happen during consideration of the Fourteenth Amendment.

Lastly, Justice Gray and the Court dedicated quite a bit of space in the opinion to jus soli as the English common law principle that the Fourteenth Amendment formally codified in the Constitution. “[The Citizenship Clause] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. The language of the constitution, as has been well said, could not be understood without reference to the common law,” wrote Justice Gray. “The fundamental principle of the common law with regard to English nationality was birth within the allegiance…of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual…and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.”

Justice Gray also favorably quoted Horace Binney, who, in 1854, authored an essay, “The Alienigenæ of the United States,” in which he wrote, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

In other words, “subject to the jurisdiction thereof” means born in the United States and subject to its laws and courts and other obligations of citizenship. That’s the only allegiance any citizen, by birth or naturalization, owes to his or her country. Citizenship may be renounced, but unless that happens, the children of immigrants born in the United States are citizens.

What Happens to Birthright Citizenship Now?

U.S. District Court Judge John Coughenour, who was appointed by President Ronald Reagan, issued an injunction against the executive order. Judge Coughenour also called the executive order “blatantly unconstitutional” in court. The administration appealed the injunction to the Supreme Court after the U.S. Court of Appeals for the Ninth Circuit denied the motion to stay Judge Coughenour’s injunction.

The executive order will end up before the Supreme Court. It’s only a matter of time. It’s very difficult to guess what the Court will ultimately do. Considering Wong Kim Ark has been an established precedent for more than 120 years, it’s hard to see the Court completely overturning it. Such an action would have substantial ramifications for the United States and individuals born to immigrants, regardless of their legal status, inside its borders.

However, the Court is more philosophically conservative today than it has been at any point in modern history. There are, though, serious jurists on the Court who will weigh Wong Kim Ark through the lens of the United States’ history and traditions, the reliance on the English common law principle of jus soli, and the congressional intent of the framers of the Fourteenth Amendment.

The administration faces a very high bar to overturn Wong Kim Ark that even conservatives acknowledge. Appearing on CNN recently, former Rep. Ken Buck (R-CO) said, “I do believe that the Department of Justice, working with Homeland Security, can find individual instances, maybe a crime fraud exception to this particular constitutional amendment that would start to whittle away at this -- this law and not have it as broad as it has been interpreted in the past.”

However, Buck further explained, “[B]ut just with the stroke of a pen, a president can't do this. President Biden couldn't forgive student loan debt with the stroke of a pen. Past presidents can't do this. Typically, presidents, especially in their first 100 days, overstep their executive authority by trying to engage in acts like this.”

Should the Court issue a holding that upholds the precedent established by Wong Kim Ark, the only real option that the administration would have is for Congress to pass a constitutional amendment to modify or repeal the Citizenship Clause and repeal or modify 8 U.S.C §1401(a), which reflects the text of the Citizenship Clause. The passage of a constitutional amendment in Congress of any kind to modify or repeal the Citizenship Clause will almost certainly not happen because passions on this topic run so high.