The purpose of this article is to fact-check the history of the 14th Amendment, the intent of its authors and its subsequent interpretation (or misinterpretations) in court rulings that followed.
The article came first as a response to comments in a previous article about Congressional plans to target anchor babies. Iowa Rep Steve King is expected to propose a bill this spring that would deny citizenship to so-called “anchor babies” –children of illegal immigrants who are granted citizenship by dint of being born in the U-S.
According to McClatchy, there’s already a split among House Republicans over the forthcoming bill. Opponents call it unconstitutional and say that it won’t resolve the issue of illegal immigration. King, however, claims that the 14th Amendment doesn’t apply to the children of immigrants.
This is a common stance among those in the illegal immigration debate infuriated by the so-called “anchor baby industry,” and who are also frustrated by Washington’s refusal or inability to meet the immigration issue head on and craft a compromise that resolves some or all parts of the mess illegal immigration has become.
Russell Pearce, the Arizona state senator behind that state’s controversial immigration law, SB 1070, made this argument repeatedly. From the Wall Street Journal, July 30:
Mr. Pearce, like some other proponents of the change, argued that the amendment as written doesn’t apply to illegal immigrants. Because illegal immigrants aren’t “subject to the jurisdiction” of the U.S., as the amendment requires, they fall outside its protection, these people argue. A group of House lawmakers made a similar argument when they tried to pass legislation changing the birthright principle in 2005.
“When it was ratified in 1868, the amendment had to do with African-Americans; it had nothing to do with aliens,” said Mr. Pearce. “It’s got to be fixed.”
Mr Pearce is wrong, but the Journal never did the research to point that out.
On the August 12 edition of Fox News‘ “On the Record” with Greta Van Susteren, Pearce made these claims again, arguing that the 14th Amendment was intended for African-Americans alone, and not “aliens, legal, or illegal”:
We have laws in this country. It’s illegal to enter, illegal to remain. Yet we reward you with the birth, again, citizenship of those born called birthright citizenship. It was never intended to be a part of the 14th amendment. It’d be nice if people would get it right once in a while.
I mean, there’s two Supreme Court decisions that make that clear. The debate, Howard Jacob – [Senator] Jacob Howards on the floor of the Senate, and Senator [Edgar] Cowan, in writing [inaudible] 1816 said this amendment does not apply to foreigners or aliens at all. Yet, we keep misapplying it. And that came from a court decision after the Slaughter-House and [Elk v. Wilkins] decision, which made it clear. And, like I said, the American Indians, there’s no doubt where they were born, they were not considered citizens under the 14th amendment. Congress had to pass three times congressional acts recognizing the citizenship of the Indians.
Among the comments by readers in the previous article, American Hispanic writes:
Apparently you do not understand why the 14th amendment was written and for whom?
The 14th amendment was written for the African slave’s children. Not for illegal aliens. Apparently the American leaders of that time period didn’t know about Mexico or their parasitic nationals and how they would use anything they can to their advantage.
“Illegal immigrants” as we know them now didn’t exist when the 14th Amendment was written in 1866, since the Congress had not yet begun restricting entry into the country. There were, however, plenty of immigrants who were excluded from naturalization. The rule at the time, established in 1790, was that aliens who were “free white persons” could become citizens after two years of residency. A couple years after the 14th Amendment was adopted, Congress extended naturalization eligibility to include “persons of African descent.” Asians remained excluded until 1898. (See below)
The Fourteenth Amendment was adopted on July 9, 1868. It’s one three Reconstruction Amendments (13th, 14th and 15th), also known as the Civil War Amendments. They were intended to restructure the United States from a country that was (in Abraham Lincoln’s words) “half slave and half free” to one in which the constitutionally guaranteed “blessings of liberty” would be extended to the entire male populace, including the former slaves and their descendants.
The 13th Amendment (proposed and ratified in 1865) abolished slavery. The 14th Amendment (proposed in 1866 and ratified in 1868) included a redefinition of citizenship, the Privileges or Immunities Clause, Due Process and Equal Protection Clauses. The 15th Amendment, (proposed in 1869 and ratified in 1870) granted the right to vote, regardless of “race, color, or previous condition of servitude.” (It applied only to men, much to the disappointment of women suffragettes.)
With respect to immigration, it’s the Citizenship Clause that provides our focus. It opens the 14th Amendment (thus, making citizenship the most important part of the Amendment):
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.
Worth noting is that this clause also contains the language that defines the federal government as the sole adjudicator of illegal immigration issues (which is why local or state governments are constitutionally prohibited from passing immigration law.)
The Citizenship Clause was ultimately intended to overrule the decision in the Dred Scott case of 1857, which held that blacks could not be citizens of the United States (one of the worst rulings in the high court’s history).
The issue, which was in the courts and on the front pages of newspapers through the 1850s, embroiled the country in a pro-slavery versus anti-slavery debate. The Supreme Court decision in 1857 put a match to the smoldering blood feud and the Civil War soon followed.
As a side note, Dred Scott was the first case since Marbury in 1801 in which the Supreme Court used the power of judicial review to declare an act of Congress unconstitutional. The case reinforced the role of the Supreme Court as the institution to which American society turns for the final and binding decisions on its most incendiary issues. It also serves as the exemplar of how much damage can be done when the power of judicial review goes awry.
Fast forward to 1866 as Congress begins work on the so-called Civil War Amendments. The development of the language that made it into the 14th Amendment is revealing. Questions about who would be a citizen didn’t just include Negro slaves. Some senators wanted to exclude Indians and Chinese from citizenship. One argument was that if Indians were citizens, then state laws that prohibited whites from selling arms and ammunition to Indians would be void. At a time when the suppression of Indians and the seizure of their lands was proceeding in earnest, it was considered unacceptable to recognize a right of Indians to keep and bear arms. Thus, the Senate voted to define all persons born in the United States, without distinction of color, as citizens, “excluding Indians not taxed.”
The final draft of the Citizenship Clause would follow soon after, not only to address Dred Scott, but the question of Indians and Chinese. It’s the language we have today: “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Proposed in May of 1866, it’s known as the Howard Amendment, named after its author, Sen Jacob Howard of Michigan.
What’s important to note here, contrary to the claims of Arizona state senator Pearce and others who’ve made the same argument, the lawmakers of the 39th Congress absolutely and explicitly recognized the impact of the 14th Amendment on “aliens.” In proposing the Citizenship Clause, Senator Howard stated on May 30, 1866:
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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.
But as recorded in the Congressional Record, Senator Howard also provides his definition of a citizen of the United States:
A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. … [The Constitution] put the citizens of the several States on an equality with each other as to all fundamental rights…And how did they antecedently become citizens of the several States? By birth or by naturalization. [Emphasis mine]
Go back to the argument made by Congressman King, that the 14th Amendment doesn’t apply to the children of immigrants. What exactly, then, did Senator Howard mean when he said “by birth”?
Following Howard’s statement, a raucous debate followed over whether it was wise to extend citizenship to the children of foreigners –“coolies,” “gypsies” and “mongols” were some of the terms. For example, one lawmaker of the day often cited by conservatives is Senator Edgar Cowan of Pennsylvania (one of only 11 Senators who eventually voted against the 14th Amendment). During debate over the Citizenship Clause, he expressed concerns that Chinese immigrants would overrun California. He stated:
[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? I do not know that the contingency will ever happen, but it may be well to consider it while we are on this point.
As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she chooses who is not a citizen of some one of the United States. She cannot forbid his entrance; but unquestionably, if she was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, she would have the right to say that those people should not come there. It depends upon the inherent character of the men. Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society.
They may pour in their million upon our Pacific coast in a very short time. Are the States to lose control over this immigration? Is the United States to determine that they are to be citizens?
Cowan further said of California:
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. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit.
Senator John Conness of California (never quoted by conservatives) responded to Cowan’s remarks, stating:
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.
What he said bears repeating: “it is proposed to declare” that “the children begotten of Chinese parents” “shall be citizens.”
Conness later added:
We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United Sates to be entitled to civil rights and to equal protection before the law with others.
Referring to Cowan’s remarks, Conness also stated that “it may be very good capital in an electioneering campaign to declaim against the Chinese.”
Consider the words of Ohio Sen John Bingham, a principal framer of the 14th Amendment who served on the committed that crafted the language. In debate, Senator Bingham said:
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or the color of power to say that any man born within the jurisdiction of the United States, not owing foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him. [Emphasis added]
Senator Bingham also makes clear reference to a difference between natural born citizens and citizens that difference being jus sanguinis, i.e., the citizenship of the parents:
…that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
Vermont Sen Justin Smith Morrill stated:
As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone … Sir, he has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. this is the fundamental principle running through all modern politics both in this country and in Europe. Everywhere where the principle of law have been recognized at all, birth by its inherent energy and force gives citizenship.
During debate, 13th Amendment co-author Illinois Sen Lyman Trumbull said that his goal was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Clarifying his remarks, he stated:
What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. “Birth,” he said, “entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.” Speaking at length Trumbull said:
The senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States, and who owe allegiance to it. I thought that might, perhaps, be the best form in which to put the amendment at one time, ‘that all persons born in the United States, and owing allegiance thereto, are hereby declared to be citizens;’ but, upon investigation, it was found that a sort of allegiance was due to the country from persons temporarily residing in it whom we would have no right to make citizens, and that that form would not answer. Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign power or tribal authority. The objection to that was, that there were Indians not subject to tribal authority, who yet were wild and untamed in their habits, who had by some means or other become separated from their tribes, and were not under the laws of any civilized community, and of whom the authorities of the United States took no jurisdiction. . . . Then it was proposed to adopt the amendment as it now stands,—that all persons born in the United States, not subject to any foreign power, excluding Indians not taxed, shall be citizens.
There are many more quotes from many more lawmakers (catalogued here), all expressing the same sentiment: Being born here makes you a citizen.
So while Arizona state senator Pearce sources Senator Howard, he ignores Senator Howard’s own definition of an American citizen. And while Pearce cites Senator Cowan, he never points out Senator Conness of California, at whom Senator Cowan was directing his remarks back in 1866, or any of the many other Senators in consonance with Senator Conness. Why does State Senator Pearce fail to cite these other voices?
Keep in mind an important point: By the time Senator Howard introduced the 14th Amendment, Congress had been debating the language for months, and they would debate the 14th Amendment for another two years. Had lawmakers intended the Amendment to exclude certain parties, including the children of illegals, they would have included that language in the Amendment. Why didn’t they? Why didn’t Sens Howard and Cowan insist on specific language? If you follow the debate, you can see how the wording was very, very carefully worked out. If they had meant to exclude any kind of people, aliens, children of aliens, they would have done so.
It’s useful to examine the Supreme Court ruling in U-S v. Wong Kim Ark (1898) that where birth in the United States was clear, a child of Chinese parents was, in the Court’s opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law. The Court stated that long before the adoption of the 14th Amendment, “all white persons” born in the U-S, including children of “foreigners,” were considered native-born citizens (provided that they were not “children of ambassadors or public ministers of a foreign government”), and that “[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” The Court further stated:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.
Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.
You can get a good overview of all this in a 2005 report done by the Congressional Research Service (CRS). They, too, conclude that the Congress of 1866 intended to extend U-S citizenship to everyone born in the United States, regardless of “race, ethnicity or alienage of the parents.” That intent was affirmed by the Supreme Court with Kim in 1898, and again with Plyler v. Doe in 1982 and INS v. Rios-Pineda in 1985.
One final point raised by a comment in the previous article comes from reader (and fellow Examiner) Michael Williams, who references an article written by Ann Coulter last August documenting how “anchor babies” came to be citizens. Williams writes:
Her argument was that it was a footnote that Justice Brennen wrote in 1982 and slipped into his 5-4 opinion in Plyler v. Doe that made anchor babies. She also documents the author of the 14th amendment as having said for the record: “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.”
Coulter of course, implies impropriety on the part of Justice Brennan (“slyly slipped into a Supreme Court opinion…”?), and she repeated this claim on Fox News, stating that the 14th amendment “was about free slaves. This multi-culti rainbow coalition is a brand-new invention.”
As the Congressional Record shows, that is entirely untrue, so either Ms Coulter is unaware of the debate that took place in the 39th Congress, or she simply ignored it.
From the article, here’s Coulter’s account of the history:
In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.
For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)
And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)
Combine Justice Brennan’s footnote with America’s ludicrously generous welfare policies, and you end up with a bankrupt country.
If she’d looked a little further, she’d have found in an anchor baby case on the Supreme Court docket in which the child is repeatedly referred to as an American citizen, both in testimony and in the majority opinion by Justice John Harlan, Hintopoulos v. Shaughnessy, 1957.
In fact, Texas Solicitor General James C. Ho –who has worked for Justice Clarence Thomas, Texas Sen John Cornyn and President George W Bush’s Justice Department– explains:
[Plyler v. Doe (1982)] construed the Fourteenth Amendment’s Equal Protection Clause, which requires every State to afford equal protection of the laws “to any person within its jurisdiction.” By a 5-4 vote, the Court held that Texas cannot deny free public school education to undocumented children, when it provides such education to others. But although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are “subject to the jurisdiction” of the U.S., no less than legal aliens and U.S. citizens.
Writing for the majority, Justice Brennan explicitly rejected the contention that “persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction.'” In reaching this conclusion, Brennan invoked the Citizenship Clause and the Court’s analysis in Wong Kim Ark Ark, noting that:
“[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” … [N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
The four dissenting justices – Chief Justice Burger, joined by Justices White, Rehnquist, and O’Connor – rejected Brennan’s application of equal protection to the case at hand. But they pointedly expressed “no quarrel” with his threshold determination that “the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” [emphasis added]
Law professor Bill Ong Hing reportedly said in response to Coulter’s claims: “She’s basically making a straw argument and saying the footnote’s the problem, not the Fourteenth Amendment. But it’s the Fourteenth Amendment that’s her problem, not Plyler.”
Gaping holes exist in our immigration policy. No question that reform is needed, but that’s not going to happen unless we calm down, do our homework, take the ideological blinders off and try to peacefully and objectively resolve this issue without rancor or specious ad hominem. The challenge of reform is difficult enough.