Before the Coronavirus pandemic gripped the American consciousness in early 2020, America was seized by a pandemic of another kind: a hysteria among the nation’s elites over President Donald Trump’s immigration policies. The frenzy generated by the progressive-liberal press, Hollywood radicals, progressive politicians (both Democrat and Republican), the minions of the Deep State, academics, and law professors was unprecedented.
It was driven, for the most part, by the Trump Administration’s attempts to curtail illegal immigration by the adoption of a zero-tolerance policy for illegal border crossers; significant restrictions on asylum policies; the use of the National Emergencies Act to shift funds allocated for other purposes to build a border war; the use of the “remain in Mexico” policy for asylum seekers while their claims are evaluated; and the end of the long-standing “catch and release” policy.
But nothing engendered as much hysteria as the president’s bare suggestion that, in 2018—the year of the sesquicentennial of the adoption of the 14th Amendment—the policy of granting automatic birthright citizenship to the children of illegal aliens born in the United States should be ended.
United States v. Wong Kim Ark was decided in 1898 and has remained the authoritative interpretation of the 14th Amendment’s Citizenship Clause to this day. The majority decision, written by Justice Horace Gray, held that the clause must be understood in terms of the English common law. The plain language is compelling, Gray argued, and can yield no other result. The Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” The most striking feature of the clause is the fact that the phrase “subject to the jurisdiction” is alien to the common law.
The first case to articulate the grounds for English subjectship was Sir Edward Coke’s famous opinion in Calvin’s Case in 1608. “Ligeance is a true and faithful obedience of the subject due to his sovereign,” Coke wrote. “This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born, he oweth by birth-right ligeance and obedience to his sovereign.”
Coke’s exposition became authoritative for the common law and was used by William Blackstone in his Commentaries on the Laws of England, a work that was widely read at the time of the Founding and well known to the framers of the 14th Amendment. Blackstone’s account of “birth-right ligeance” in the Commentaries was a reprise of Coke’s opinion in Calvin’s Case.
He says in a passage: “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth [citing Calvin’s Case]. For, immediately upon their birth they are under the king’s protection.” What is striking about the passages from Calvin’s Case and Blackstone is the absence of any language implying anything about “subject to the jurisdiction.” Rather, the common law speaks of “allegiance,” and it would be difficult, if not impossible, to find the word “jurisdiction” associated with “subjectship” in the common law. We must also remind ourselves of the fact that “citizen” or “citizenship” is also alien to the common law.
The framers of the Citizenship Clause intentionally avoided using the word “allegiance” in the clause because they wanted to dispel any idea that citizenship derived from the common law. Thus, Justice Gray’s argument in Wong Kim Ark—that the plain language must yield a common law result—is demonstrably wrong; it was intended to yield the opposite result. The express intention, as we will show, was to avoid any possible inference that the Citizenship Clause derived any meaning from the common law. During the debate, no one suggested the Citizenship Clause was based on the common law. Justice Gray avers that,
[d]oubtless, the intention of the Congress which framed and 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.
The reason that Gray wanted to dismiss the importance of the congressional debates is the simple fact that none of the principal supporters of the Citizenship Clause ever suggested that it derived its authority from the common law or that American citizenship was based on the common law. No one mentioned the greatest common law authorities, Sir Edward Coke or Blackstone, or even the common law itself. The chances that these omissions were random cannot be believed, especially if the framers of the Citizenship Clause intended for American citizenship to be based on the common law. If that were the case, they would have no reason to conceal it.
Of course, Justice Gray wanted to confine himself to the text because that was the only chance he had to make a case for the common law understanding—and even there, the phrase “subject to the jurisdiction” proved impossible to square with the common law. And the one foray into the congressional debate that he thought he could use to his advantage turned into a disaster for the cause he championed. Justice Gray didn’t seem to realize that the plain text excluded any connection to the common law as much as the congressional debates did.
Justice Gray’s decision is not only wrong in its interpretation of the Founding, but also in its interpretation of the intentions of the framers of the 14th Amendment. It should be overruled.
The Original Meaning of the Citizenship Clause
The Citizenship Clause was a late addition to the 14th Amendment. Senator Benjamin Wade, Republican of Ohio, suggested on May 23, 1866 that, given the importance of the amendment’s guarantee of privileges and immunities to U.S. citizens from state abridgement, it was imperative that a “strong and clear” definition of citizenship be added to the amendment. He proposed this language: “persons born in the United States or naturalized by the laws thereof.” Had this language been accepted by Congress and ratified as the amendment, Justice Gray might have had a better case, although Wade does not say his proposed amendment reflected a common law understanding. In fact, he says that any uncertainty regarding citizenship had been “settled by the civil rights bill” (namely, the Civil Right Act of 1866).
Wade’s proposal was referred to the Joint Committee on Reconstruction, and Senator Jacob Howard presented the committee’s draft, which became the first sentence of the 14th Amendment. The significant addition to Wade’s proposal was the “subject to the jurisdiction” clause. Senator Howard was the floor manager for the amendment in the Senate and, evidently, he and the Joint Committee placed some importance on the addition of the jurisdiction clause. That meant, at a minimum, that not all persons born in the United States were automatically citizens; they also had to be “subject to the jurisdiction” of the United States. His remarks introducing the new language in the Senate have attracted much attention as well as much controversy.
“I do not propose to say anything on that subject,” Howard said,
except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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 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. This has long been a great desideratum in the jurisprudence and legislation of this country.
When Senator Howard said he regarded the Citizenship Clause as declaratory of the law as it already existed, he was, of course, referring to the Civil Rights Act of 1866, which had been passed over the veto of President Andrew Johnson by a two-thirds majority in both houses less than two months prior to the May 30 debate in the Senate. The author of the Civil Rights Act was Senator Lyman Trumbull, Republican of Illinois, and co-author of the 13th Amendment. The Civil Rights Act provided the first definition of citizenship after the ratification of the 13th Amendment and specified, “[t]hat 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.”
Thus, an overwhelming majority of Congress—on the eve of the debate over the meaning of the Citizenship Clause of section one of the 14th Amendment—were committed to the view that foreigners (and aliens) were not subject to birthright citizenship. The Civil Rights Act was palpably clear: not everyone born within the geographical limits of the United States was deemed to be a citizen by birth. If, as many in Congress said, the Citizenship Clause meant to affirm the terms specified in the Civil Rights Act of 1866, not everyone born within the geographical limits of the United States was “subject to the jurisdiction” of the United States. As Chief Justice Fuller cogently observes in his dissenting opinion in Wong Kim Ark,
[t]he act was passed and the amendment proposed by the same congress, and it is not open to reasonable doubt that the words “subject to the jurisdiction thereof,” in the amendment, were used as synonymous with the word ‘and not subject to any foreign power,’ of the act.
Ideological liberals have invented a wholly fabulous interpretation of Senator Howard’s speech introducing the Citizenship Clause, maintaining that when he mentions that “foreigners, aliens” are not “subject to the jurisdiction” of the United States he means to include only “families of ambassadors or foreign ministers.” If so, this would be an extraordinarily loose way of speaking: ambassadors and foreign ministers are foreigners and aliens and their designation as such would be superfluous. If we give full weight to the commas after “foreigners” and after “aliens,” this would indicate a series that might be read in this way: “foreigners, aliens, families of ambassadors, foreign ministers,” all separate classes of persons who are excluded from jurisdiction. Or it could be read in this way: “foreigners, aliens, [that is, those who belong to the] families of ambassadors or foreign ministers.” I suggest that the natural reading of the passage is the former; the commas suggest a discrete listing of separate classes of persons excluded from jurisdiction. Of course, the debate was documented by shorthand reporters and not always checked by the speakers, so the issue cannot be settled simply based on the placement of commas.
Senator Howard had said that everyone born in the U.S. and subject to its jurisdiction “is by virtue of natural law and national law a citizen of the United States.” We have already seen that “national law” clearly refers to the Civil Rights Act of 1866; the reference to “natural law” would have been understood by the members of the Senate as a clear allusion to the Declaration of Independence and social compact. The architectonic theme of the Republicans in the 39th Congress was to complete the Founding by implementing the principles that the framers were compelled to postpone. Thaddeus Stevens, a leading Radical Republican and member of the Joint Committee on Reconstruction, made this point in a speech before the House on May 8, 1866: “I beg gentlemen,” he said “to consider the magnitude of the task that was imposed” on the Joint Committee.
They were expected to suggest a plan for rebuilding a shattered nation—a nation which though not dissevered was yet shaken and riven…. It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.
References to the Declaration as “organic law” were so frequent throughout the debates that one can hardly doubt that the Reconstruction Congress was self-consciously engaged in ratifying a refounding of the regime by embodying in the Constitution the victories that had been won on the battlefields of the Civil War. From this point of view, the Civil War must be understood as the last battle of the Revolutionary War—since only the Reconstruction Amendments bring the Constitution into full compliance with the “fundamental principles of the Revolution.”
Allegiance Undivided
In listing those who were not subject to the jurisdiction of the United States, Senator Howard seemed to make a glaring omission: he failed to mention Indians. After all, the Civil Rights Act of 1866 had excluded “Indians not taxed” from birthright citizenship. He was forced to clarify his omission when challenged by Senator James R. Doolittle of Wisconsin, who queried whether the “Senator from Michigan does not intend by this amendment to include the Indians;” he thereupon proposed to add “excluding Indians not taxed.” Howard vigorously opposed the amendment, remarking that “Indians born within the limits of the United States and who maintain their tribal relations, are not in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”
In other words, the omission of Indians from the exceptions to the jurisdiction clause was intentional. Howard clearly regarded Indians as “foreigners, [or] aliens” and thus not “subject to the jurisdiction” of the United States.
This conclusion was supported by Senator Lyman Trumbull, who also opposed Doolittle’s amendment. Senator Trumbull, chairman of the Senate Judiciary Committee, remarked that “subject to the jurisdiction” meant “subject to the complete jurisdiction” of the United States. This meant, above all, “[n]ot owing to anyone else.” Indians owe allegiance to their tribes and “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” After much vigorous debate about Senator Doolittle’s proposed amendment in the Senate, Senator Howard entered the fray once again supporting Senator Trumbull’s statement about jurisdiction:
I concur entirely with the honorable Senator from Illinois…. Certainly…gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to the full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers.
Read in light of this statement, the Civil Rights Act, and the authoritative statements by Senator Trumbull in the May 30 debate, can there be any real dispute that “foreigners, aliens” in Senator Howard’s opening statement does not refer exclusively to “families of ambassadors or foreign ministers” but to “foreigners, aliens” as a separate class?
Determining who was “subject to the jurisdiction of the United States” was a matter of allegiance for Trumbull, Howard, and the principal supporters of the Citizenship Clause. It is for this reason that we have the old common law terms “ligeance” or “allegiance” introduced into the debate to clarify the meaning of “subject to the jurisdiction.” The constitutional language “subject to the jurisdiction,” Trumbull explained, meant “subject to the complete jurisdiction,” by which we understand him to mean not just subject to the laws and the courts—which would be the case for citizens and aliens alike, but something more—owing exclusive allegiance to the United States. Indians owed allegiance, if only partially, to their tribes; foreigners and aliens owed allegiance to other countries. The question that arises, of course, is that if the framers of the Citizenship Clause meant “subject to the jurisdiction” to mean “ligeance” or “allegiance,” why didn’t they just simply make “owing allegiance to the United States” a qualification of citizenship? Did being “subject to the complete jurisdiction” include “allegiance” in addition to other factors?
During the debate over the Civil Rights Act of 1866, Representative John Bingham of Ohio—himself a leading architect of the 14th Amendment in the House—also spoke of jurisdiction in terms of “allegiance.” He averred that the introductory clause of the act “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…a natural-born citizen,” later refining his statement to simply not “owing foreign allegiance.” We recall that the definition of “citizen” in the act was “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.”
The immediate impetus for the legislation was, of course, to overturn the infamous Dred Scott decision, which had held that no black of African descent, slave or free, could ever be a citizen of the United States. This law declared blacks to be natural born citizens. Trumbull, who was also the co-author of the 13th Amendment, believed that emancipation had been sufficient to confer citizenship, but turned to legislation to settle any questions about the issue. Some, however, believed that legislation was insufficient to repeal a Supreme Court decision that had relied on a constitutional interpretation. Others feared that future congressional majorities could simply repeal such legislation. It was this fear that led to the movement to “constitutionalize” the Civil Rights Act.
When introducing the Civil Rights Act, Senator Trumbull said, “I thought that it might perhaps be the best form” to state,
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 resident in it whom we would have no right to make citizens, and that that form would not answer.
Trumbull clearly alludes to the fact that, under the common law, temporary allegiance is, “such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another.” Thus, the use of common law language in the Civil Rights Act—and, by extension, the Citizenship Clause of the 14th Amendment—would have granted birthright citizenship to children born to those owing only temporary allegiance to the United States. This is, those only in the country for temporary purposes with no intention of remaining or establishing domicile. This would certainly provoke issues of national sovereignty and the nation’s control over citizenship. The common law language, as Trumbull realized, was inappropriate even though allegiance was an important element in determining the meaning of “subject to the jurisdiction.”
It is abundantly clear that Trumbull intentionally avoided the use of common law language in an effort to dispel any inference that the definition of American citizenship derived any authority from the common law. The same conclusion must be drawn for the Citizenship Clause of the 14th Amendment. We remember that, when introducing the Citizenship Clause, Senator Howard stated clearly that he regarded it as, “simply declaratory of what I regard as the law of the land already.” He was obviously referring to the Civil Rights Act of 1866, passed overwhelming by both Houses, just two months prior. As Chief Justice Fuller accurately stated in a previously quoted statement, the Civil Rights Act and the 14th Amendment were actions of the same Congress, “and it is not open to reasonable doubt that the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power,’ of the act.”
Edward J. Erler is Professor of Political Science emeritus at CSU San Bernardino. Previously a Distinguished Visiting Professor at Hillsdale College, he is a senior fellow of The Claremont Institute and a member of the Board of Directors.
https://americanmind.org/salvo/the-case-against-birthright-citizenship/
