Dismantling a Fake Argument Against Birthright Citizenship

(Bloomberg Opinion) -- I think it would be possible to construct a reasonable argument for getting rid of birthright citizenship. After all, times have changed since 1868, when the ratification of the 14th Amendment to the Constitution guaranteed that

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.

Travel to the U.S. is much easier now than it was in 1868, the U.S. now has laws restricting immigration — which it didn’t yet then — and one could argue that birthright citizenship has become a “magnet” for those looking to circumvent those laws, as former Donald Trump administration official Michael Anton did in a Washington Post op-ed last week. Anton continued:

This magnet attracts not just millions of the world’s poor but also increasingly affluent immigrants. “Maternity hotels” for pregnant Chinese tourists advertise openly in Southern California and elsewhere. Fly to the United States to have your baby, and its silly government will give him or her American citizenship!

I’m not sure that allowing children of affluent Chinese couples to become U.S. citizens is actually all that silly, but let’s leave that discussion to the side. My point is simply that this argument has some basis in fact and reason.

The same cannot be said for the argument that the 14th Amendment was not meant to guarantee birthright citizenship, which was the main point of Anton’s op-ed. To back this up, he claimed that U.S. Senator Jacob Howard of Michigan, who authored the amendment’s citizenship clause, had “clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’”

That sounds bad for birthright citizenship! The inserted “[or]” turns out to be doing a lot of work, though. Here’s Howard’s full quote from the May 30, 1866, Congressional Globe, the precursor to today’s Congressional Record, which I read on the Library of Congress website after being tipped off by a tweetstorm from one Dan Trombly:

The 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 embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

In this context, it seems more likely that what Howard was implying in that spot was an “and” — that is, he meant to exclude only foreigners who belong to the families of foreign diplomats. Still, it is ambiguous, and Anton got the quote and the “[or]” from a 2015 National Review essay by Edward J. Erler, an emeritus professor of political science at California State University at San Bernardino who has written widely on such matters. Perhaps Anton assumed that Erler put it there because he’d read the whole debate and it seemed like the fairest interpretation of Howard’s views.

These days, a reader doesn’t have to stop at such assumptions, though, given that all these debates are online at loc.gov. After reading through the Senate citizenship-clause debate of May 30, 1866 (it fills eight densely packed pages), I can report that Erler — as well as John C. Eastman, a professor at Chapman University’s Dale E. Fowler School of Law in California who has been another leading proponent of this revisionist theory of the 14th Amendment — cannot be relied upon for accurate representations of 19th-century legislative history. (Even before I had finished reading the whole debate, I went on a Twitter rant about the dubiousness of that “[or],” after which the National Review almost immediately removed it from Erler’s 2015 piece and posted an editor’s note; the Washington Post hadn’t changed the quote in Anton’s piece as of Tuesday morning.) 

Here’s a much more reliable summary of the debate from a 2006 essay by James C. Ho, a conservative Dallas lawyer whom President Trump appointed last year to the U.S. Fifth Circuit Court of Appeals:

Howard’s colleagues vigorously debated the wisdom of his amendment — indeed, some opposed it precisely because they opposed extending birthright citizenship to the children of aliens of different races. But no Senator disputed the meaning of the amendment with respect to alien children.

The longer version is that most of the 1866 debate focused on the status of American Indians who, because of treaties and other arrangements, weren’t fully under U.S. jurisdiction. Several senators pushed to make the exclusion of these Indians more explicit in the amendment. Howard, a former city attorney of Detroit who seems to have wanted as simple and timeless a definition of citizenship as possible, pushed against that and prevailed. At one point during this discussion, Senate Judiciary Committee Chairman Lyman Trumbull of Illinois, who sided with Howard, said that “subject to the jurisdiction of the United States” means “not owing allegiance to anybody else.” This quote is also used by Anton, Erler and Eastman to back up their contention that U.S.-born children of citizens of foreign countries (who presumably still owe their allegiance to somebody else) were not meant to be included in the 14th Amendment’s citizenship guarantee.

In context, though, that doesn’t seem to be what Trumbull was getting at. He continued,

Can you sue a Navajoe [sic] 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.

Foreigners who happen to be on U.S. territory — even if for a brief visit, even if they have crossed the border without permission — are by contrast entirely under U.S. jurisdiction unless they have some kind of diplomatic immunity. And as indicated in Ho’s summary above, it is quite clear from the one major exchange in the citizenship-clause debate that focused directly on children born to foreigners in the U.S. that the amendment was understood to include them.

It started with a long tirade from Senator Edgar Cowan of Pennsylvania about the potential dangers of automatically conferring U.S. citizenship on the children of, among others, “a flood of Australians or people from Borneo, man-eaters or cannibals.” His main concerns were about members of the “Mongol race” (“Mongolian” and “Chinese” seem to have been used interchangeably in those days), who “may pour in their millions upon our Pacific coast in a very short time,” and “Gypsies” — today known as the Romani — whom he described as a scourge on his home state:

They infest society. They impose upon the simple and the weak everywhere. Are those people, by a constitutional amendment, to be put out of the reach of the State in which they live? … If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous.

Cowan was effectively rehearsing the arguments of those who oppose birthright citizenship today. In the U.S. Senate of 1866, these arguments were decisively rejected.

Irish-born California Senator John Conness responded directly to Cowan, asserting that the Pennsylvania senator vastly exaggerated the threat posed by Chinese immigration in the West and was likely exaggerating the scale of the purported “Gypsy invasion of Pennsylvania,” too. He said he supported the proposition that “children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States.” At one point during Conness’s speech, Howard chimed in with a few words that made clear that he agreed. And that was that.

Discussion moved on to the Indian question discussed above, after which an amendment to add the phrase “excluding Indians not taxed” to Howard’s citizenship clause was rejected 30-10. Howard’s wording was then approved by acclamation, and the wording of the entire 14th Amendment was approved nine days later by a 33-11 Senate vote (Cowan was one of the no votes) and five days after that by a 120-32 vote in the House. After the July 1868 approval of the amendment by the Reconstruction legislatures of several Southern states pushed it past the three-quarters-of-all-states threshold, Secretary of State William Seward proclaimed it ratified.

If this debate had occurred a decade or so later, things might have turned out differently. By then, conservative Southern Democrats were returning to Congress, while liberalNorthern Republicans were souring on immigration and civil rights. But in the overwhelmingly Republican post-Civil War Senate of 1866, the clear intention was to grant citizenship to anyone born in the U.S., regardless of parentage, unless those parents were foreign diplomats or Indians outside U.S. jurisdiction. The amendment had been drafted to guarantee the rights of freed slaves and their children, but its supporters and opponents agreed that it offered the same status to other discriminated-against groups such as the Romani people and Chinese immigrants. There is no reasonable way to read the 1866 debate in the Congressional Globe and not come away with the understanding that it was about birthright citizenship.

Why have I recounted this story? Mainly because I spent part of an afternoon last week reading through old congressional debates and thought it might be fun to share what I had learned. But it’s also because, while Anton’s op-ed has already brought forth a chorus of fiery condemnations, including at least two in the Washington Post, it seemed like maybe the world could use a non-fiery one.

Again, I don’t think arguing against birthright citizenship is by definition crazy or out there. The overwhelming majority of the world’s nations do not offer it, after all. And as current U.S. Court of Appeals Judge Ho noted at the end of his 2006 essay on the citizenship clause, the Supreme Court — which after wobbling a bit in an 1873 decision has consistently endorsed the understanding that the 14th Amendment guarantees birthright citizenship — does have the power to reverse itself. But the claim that the authors of the 14th Amendment meant to exclude the children of foreign citizens in the U.S. from its birthright-citizenship guarantee is, to anyone who takes the time to read a few pages of congressional debate, obviously false.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Justin Fox is a Bloomberg Opinion columnist covering business. He was the editorial director of Harvard Business Review and wrote for Time, Fortune and American Banker. He is the author of “The Myth of the Rational Market.”

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