MADE IN AMERICA
MYTHS & FACTS ABOUT
By James Ho, Margaret Stock, Eric Ward & Elizabeth Wydra
Photo from �ickr.com. By Brian Wilson Photography.
MADE IN AMERICA:
MYTHS & FACTS ABOUT BIRTHRIGHT CITIZENSHIP
BY JAMES HO, MARGARET STOCK, ERIC WARD & ELIZABETH WYDRA
ABOUT PERSPECTIVES ON IMMIGRATION
The Immigration Policy Center’s Perspectives are thoughtful narratives written by leading academics and researchers who bring a wide range of multi‐disciplinary knowledge to the issue of immigration policy.
ABOUT THE AUTHORS
James C. Ho is currently Solicitor General for the state of Texas. Previously he worked at the Dallas office of Gibson, Dunn & Crutcher LLP. He has previously served as chief counsel of the U.S. Senate Judiciary Subcommittees on the Constitution and Immigration under the chairmanship of Senator John Cornyn (R‐TX) and as a law clerk to Justice Clarence Thomas.
Margaret D. Stock is an attorney in Anchorage, Alaska; a Lieutenant Colonel in the Military Police Corps, U.S. Army Reserve; and an Associate Professor (Drilling Individual Mobilization Augmentee) assigned to the Dept. of Social Sciences, U.S. Military Academy, West Point, New York.
Eric Ward is the National Field Director of the Center for New Community, a national civil rights organization based in Chicago, Illinois.
Elizabeth B. Wydra is Chief Counsel at the Constitutional Accountability Center, www.theusconstitution.org, a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history.
ABOUT THE IMMIGRATION POLICY CENTER
The Immigration Policy Center, established in 2003, is the policy arm of the American Immigration Law Foundation. IPC's mission is to shape a rational national conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policymakers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion‐makers, and the media. IPC is a non‐partisan organization that neither supports nor opposes any political party or candidate for office. Visit our website at www.immigrationpolicy.org and our blog at www.immigrationimpact.com.
Supported in part by a grant from the Foundation to Promote Open Society
TABLE OF CONTENTS
Introduction .................................................................................................................................................. 3
Defining “American:” Birthright Citizenship and the Original Understanding of the 14th Amendment (James C. Ho)................................................................................................................................................. 6
Debunking Modern Arguments Against Birthright Citizenship (Elizabeth B. Wydra)................................. 16
A New Nativism: Anti‐Immigration Politics and the Fourteenth Amendment (Eric Ward)........................ 24
Policy Arguments in Favor of Retaining America’s Birthright Citizenship Law (Margaret D. Stock) .......... 29
The Fourteenth Amendment to the Constitution is enshrined in U.S. history as the cornerstone of American civil rights, ensuring due process and equal protection under the law to all persons. Equally important, however, is the Fourteenth Amendment’s affirmation that all persons born or naturalized in the United States and subject to its jurisdiction are, in fact, U.S. citizens: 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.
Most recently, pundits used the issue of birthright citizenship to challenge the legitimacy of both major parties’ candidates in the 2008 presidential election. Senator John McCain was born in 1936 on a U.S. military base in the Panama Canal Zone, where his father—a U.S. Naval officer—was posted, causing some to question whether McCain is a natural‐born citizen. President Barack Obama was born to a U.S.‐citizen mother and an immigrant father in Hawaii in 1961, two years after Hawaii became the 50th U.S. state. Even months into his presidency, some conspiracy theorists still question President Obama’s eligibility to serve.
But the question of who is entitled to U.S. citizenship is most often raised during debates over illegal immigration. While most of the debate turns on the question of who can become a citizen through legalization and naturalization, some groups argue that the way to end illegal immigration is to change the rules of the game by denying citizenship to the U.S.‐born children of illegal immigrants.
Each year, bills are introduced in Congress to deny U.S. citizenship to the children of illegal immigrants and, in some cases, the children of immigrants who are in the country on temporary visas. On May 29, 2009, Rep. Nathan Deal (R‐9th/GA) re‐introduced his “Birthright Citizenship Act” (HR 1868), which would deny birthright citizenship to children born in the United States to illegal, and even temporary, immigrants. Recently, there have been proposals to abolish birthright citizenship in Texas and California by state lawmakers, who hope to advance a national debate on the issue and push a legal challenge to the Supreme Court.
Rarely, however, does the immigration advocacy community explore the impact of the birthright citizenship debate as it relates to the Fourteenth Amendment. Thus, the Immigration Policy Center invited respected scholars and authors to provide greater perspective on this perennial issue.
Before introducing the specific papers, a bit of background is in order.
There are two basic principles by which countries define citizenship. The first is jus sanguinis, or citizenship by descent, which means that an individual is a citizen based on his or her parentage. Under this principle, a person is not automatically a citizen by virtue of having been born within the country’s territory. Rather, the citizenship of the child’s parents determines whether or not the child is a citizen. Countries that adhere to the principle of citizenship by descent vary on issues such as whether citizenship is acquired through the father or the mother, whether one or both parents must be citizens, and the marital status of the parents. Switzerland, for example, follows the principle of jus sanguinis and does not confer citizenship on all persons born in the country. Second‐ and even third‐generation immigrants may not be citizens of Switzerland by birth because birth in the territory does not matter. Similarly, being born in Germany does not automatically confer German citizenship. A child born in Germany to parents who are not German citizens will acquire German citizenship at birth only if one parent has lived in the country for at least eight years.
The second principle of citizenship is jus soli, or citizenship by birth. Any person born within the country’s territory is a citizen, regardless of the citizenship of the parents. Countries may place limits on birthright citizenship, such as excluding the children of foreign diplomats. The United States, Canada, and some Latin American countries, among others, ascribe citizenship to all persons (with noted exceptions) born in their territory. Thus the children of legal and illegal immigrants born in the United States are U.S. citizens by virtue of the fact they are born on U.S. soil.
Of course, even countries with birthright citizenship policies have jus sanguinis policies for persons who are born outside of the country, but who may have a claim to citizenship. For example, children born to U.S. citizens residing abroad may be U.S. citizens at birth if both of the parents are citizens of the United States and at least one parent resided in the United States before the birth of the child, or if one parent is a citizen of the United States who resided in the United States for at least five years before the birth of the child.
The few examples provided above demonstrate how complex citizenship laws may be. However, one thing is clear: for nearly 150 years, the principle of birthright citizenship for all persons born within the United States has been a strong and clear element of American law and values.
In this series, the Immigration Policy Center explores the issue of birthright citizenship from several different angles:
James C. Ho, a noted constitutional scholar, examines the historical and legal genesis of birthright citizenship and the unsuccessful legal arguments put forward to abolish it.
Elizabeth Wydra of the Constitutional Accountability Center looks at the Reconstructionist context of the Citizenship Clause and shows that Congress clearly meant to provide birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. She argues that attempts to abolish birthright citizenship run counter to American values. 4
Eric Ward of the Center for New Community provides an African American perspective on birthright citizenship and the 14th Amendment, which was passed in the aftermath of the Civil War in response to continued discrimination against African Americans. Ward also examines the motives of the groups at the forefront of current efforts to abolish birthright citizenship and demonstrates their deeply rooted anti‐immigrant beliefs and ties to nativist and racist traditions.
Finally, immigration attorney Margaret Stock provides very practical reasons to not tamper with birthright citizenship. The far‐reaching consequences of such a change would place a burden on all Americans, who would have to document their claim to citizenship. Contrary to the argument of anti‐immigrant groups that abolishing birthright citizenship is key to resolving the problem of illegal immigration, Stock recognizes that it would only increase the number of stateless individuals without legal status who reside within the United States.
Together, these four essays present a strong case for maintaining and celebrating our tradition of birthright citizenship—a tradition which is intimately tied to our heritage of civil rights.
Birthright Citizenship and the Original Understanding of the 14th Amendment*
By James C. Ho**
In response to increasing frustration with illegal immigration, lawmakers and activists are hotly debating various proposals to combat incentives to enter the United States outside legal chan‐ nels. Economic opportunity is the strongest attraction, of course. But another magnet, some contend, is a long‐standing provision of U.S. law that confers citizenship upon persons born within our borders. 1
There is increasing interest in repealing birthright citizenship for the children of aliens— especially undocumented persons. According to one recent poll, 49 percent of Americans believe that a child of an illegal alien should not be entitled to U.S. citizenship (41 percent disagree). 2 Legal scholars including Judge Richard Posner contend that birthright citizenship for the children of aliens may be repealed by statute. 3 Members of the current Congress have introduced legislation and held hearings, 4 following bipartisan efforts during the 1990s led by now‐Senate Majority Leader Harry Reid and others. 5
These proposals raise serious constitutional questions, however. Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.
The Fourteenth Amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Repeal proponents * This article originally appeared in The Green Bag, Summer 2006, Volume 9, Number 4. ** James C. Ho is currently Solicitor General for the state of Texas. Previously he worked at the Dallas office of Gibson, Dunn & Crutcher LLP. He has previously served as chief counsel of the U.S. Senate Judiciary Subcommittees on the Constitution and Immigration under the chairmanship of Senator John Cornyn (R‐TX) and as a law clerk to Justice Clarence Thomas. 1
8 U.S.C. § 1401.
Oforji v. Ashcroft, 354 F.3d 609, 620–21 (7th Cir. 2003) (Posner, J., concurring); John C. Eastman and Edwin Meese III, Brief of Amicus Curiae The Claremont Institute Center for Constitutional Jurisprudence, Hamdi v. Rumsfeld, No. 03–6696 (Eastman/Meese Brief) (see also www.fed‐soc.org/pdf/birthright.pdf; www.heritage.org/Research/LegalIssues/lm18.cfm); Charles Wood, “Losing Control of America’s Future,” 22 Harv. J.L. and Pub. Pol’y 465, 503–22 (1999); Peter Schuck and Rogers Smith, Citizenship Without Consent (1985).
E.g., H.R. 698; H.R. 3700, § 201; H.R. 3938, § 701;” Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty”: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 109th Cong. (2005) (“2005 House Hearing”). In March, Senator Tom Coburn circulated an amendment in committee to repeal birthright citizenship (a vote was never taken), while Senator Charles Schumer, a proponent of birthright citizenship, asked now‐ Justice Samuel A. Alito for his views during his confirmation hearings. 5
E.g., S. 1351, 103rd Cong., § 1001 (1993); 139 Cong. Rec. 21709–12 (1993) (Sen. Reid); H.R. 3862, 103rd Cong., § 401 (1994); “Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents”: Joint Hearing Before the Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1995); Citizenship Reform Act of 1997; and “Voter Eligibility Verification Act”: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. (1997).
contend that this language does not apply to the children of aliens – whether legal or illegal (with the possible exception of lawful permanent residents) – because such persons are not “subject to [U.S.] jurisdiction.” But text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.‐born children of aliens, including illegal aliens.
One might argue that the Constitution’s emphasis on place of birth is antiquated. The requirement that only natural‐born citizens may serve as President or Vice President has been condemned on similar grounds. 6 But a constitutional amendment is the only way to expand eligibility for the Presidency, and it is likewise the only way to restrict birthright citizenship. 7
We begin, of course, with the text of the Citizenship Clause. To be “subject to the jurisdiction” of the U.S. is simply to be subject to the authority of the U.S. government. 8 The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.
Common usage confirms this understanding. When we speak of a business that is subject to the jurisdiction of a regulatory agency, it must follow the laws of that agency, whether it likes it or not. 9 When we speak of an individual who is subject to the jurisdiction of a court, he must follow the judgments and orders of that court, whether he likes it or not. 10 As Justice Scalia noted just a year ago, when a statute renders a particular class of persons “subject to the jurisdiction of the United States,” Congress “has made clear its intent to extend its laws” to them. 11
Of course, when we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the U.S. Howard Stern need not swear allegiance to the FCC to be bound by Commission orders. Nor is being “subject to the jurisdiction” of the U.S. limited to those who have always complied with U.S. law. Criminals cannot immunize themselves from prosecution by violating Title 18. Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, ille‐ gal aliens are such because they are subject to U.S. law. 6
E.g., James C. Ho, “President Schwarzenegger – Or At Least Hughes?,” 7 Green Bag 2d 108 (2004). Constitutional amendments repealing birthright citizenship have been proposed. H.J. Res. 41, 109th Cong. (2005); H.J. Res. 64, 104th Cong. (1995). See also Michael Sandler, “Toward a More Perfect Definition of ‘Citizen,’” CQ Weekly, Feb. 13, 2006, at 388 (quoting Rep. Mark Foley, who supports repeal by constitutional amendment: “My view is the 14th Amendment was rather certain in its application … . Legislatively, I still am not comfortable with [the statutory approach]. I think a court could strike it down.”).
E.g., Black’s Law Dictionary defines “jurisdiction” as “[a] government’s general power to exercise authority.” 9
Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) (respecting recreational boats “subject to [the] jurisdiction” of the Coast Guard); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 544 (2001) (respecting electronic communications media “subject to the jurisdiction of the FCC”).
Rumsfeld v. Padilla, 542 U.S. 426, 445 (2004) (respecting government officials “subject to [the] habeas jurisdiction” of a particular court).
Spector v. Norwegian Cruise Line Ltd., 125 S. Ct. 2169, 2194–95 (2005) (Scalia, J., dissenting). The statement was joined by Chief Justice Rehnquist and Justice O’Connor, and no justice took issue with it. 7
Accordingly, the text of the Citizenship Clause plainly guarantees birthright citizenship to the U.S.‐born children of all persons subject to U.S. sovereign authority and laws. The clause thus covers the vast majority of lawful and unlawful aliens. Of course, the jurisdictional requirement of the Citizenship Clause must do something – and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most notably, foreign diplomats and enemy soldiers – as agents of a foreign sovereign – are not subject to U.S. law, notwithstanding their presence within U.S. territory. Foreign diplomats enjoy diplomatic immunity, 12 while lawful enemy combatants enjoy combatant immunity. 13 Accordingly, children born to them are not entitled to birthright citizenship under the Fourteenth Amendment.
This conclusion is confirmed by history.
The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth. 14 Although the doctrine was initially embraced in early American jurisprudence, 15 the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizenship to the descendents of slaves. 16 Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law. 17
When the House of Representatives first approved the measure that would eventually become the Fourteenth Amendment, it did not contain language guaranteeing citizenship. 18 On May 29, 1866, six days after the Senate began its deliberations, Senator Jacob Howard (R‐MI) proposed language pertaining to citizenship. Following extended debate the next day, the Senate ad‐ opted Howard’s language. 19 Both chambers subsequently approved the constitutional amendment without further discussion of birthright citizenship, 20 so the May 30, 1866 Senate debate offers the best insight into Congressional intent. Senator Howard’s brief introduction of his amendment confirmed its plain meaning:
Mr. HOWARD. … 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 12
Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1329–31 (11th Cir. 1984). United States v. Lindh, 212 F. Supp. 2d 541, 553–58 (E.D. Va. 2002). 14
Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).
Inglis v. Trustees of the Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830) (Story, J.) (“[n]othing is better settled at the common law” than jus soli); Lynch v. Clarke, 1 Sandford Ch. 583, 646 (N.Y. 1844); Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J. L. & Humanities 73, 138–40 (1997). 16 Scott v. Sanford, 60 U.S. 393 (1857).
Scott v. Sanford, 60 U.S. 393 (1857).
Saenz v. Roe, 526 U.S. 489, 502 n.15 (1999); In re Look Tin Sing, 21 F. 905, 909–10 (C.C. D. Cal. 1884). 18
Cong. Globe, 39th Cong., 1st Sess. 2545 (1866).
Id. at 2869, 2890–97.
Id. at 3042, 3149.
to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” 21
This understanding was universally adopted by other Senators. 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.
Senator Edgar Cowan (R‐PA)—who would later vote against the entire constitutional amendment anyway—was the first to speak in opposition to extending birthright citizenship to the children of foreigners. Cowan declared that, “if [a state] were overrun by another and a different race, it would have the right to absolutely expel them.” He feared that the Howard amendment would effectively deprive states of the authority to expel persons of different races—in particular, the Gypsies in his home state of Pennsylvania and the Chinese in Califor‐ nia—by granting their children citizenship and thereby enabling foreign populations to overrun the country. Cowan objected especially to granting birthright citizenship to the children of aliens who “owe [the U.S.] no allegiance [and] who pretend to owe none,” and to those who regularly commit “trespass” within the U.S. 22
In response, proponents of the Howard amendment endorsed Cowan’s interpretation. Senator John Conness (R‐CA) responded specifically to Cowan’s concerns about extending birthright citizenship to the children of Chinese immigrants:
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. … I am in favor of doing so. … 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 States to be entitled to civil rights and to equal protection before the law with others.
Conness acknowledged Cowan’s dire predictions of foreign overpopulation, but explained that, although legally correct, Cowan’s parade of horribles would not be realized, because most Chinese would not take advantage of such rights although entitled to them. He noted that most Chinese work and then return to their home country, rather than start families in the U.S. Con‐ ness thus concluded that, if Cowan “knew as much of the Chinese and their habits as he professes to do of the Gypsies, … he would not be alarmed.” 23
Id. at 2890 (emphasis added).
Space constraints, if nothing else, prevent me from quoting Cowan’s racially charged remarks here in full, but see id. at 2890– 91.
Id. at 2891. Like Cowan, Conness also had bad things to say about the Chinese. Id. at 2891–92. But to his credit, Conness at least recognized their need for civil rights protections. Id. at 2892. 22
No Senator took issue with the consensus interpretation adopted by Howard, Cowan, and Conness. To be sure, one interpretive dispute did arise. Senators disagreed over whether the Howard amendment would extend birthright citizenship to the children of Indians. For although Indian tribes resided within U.S. territory, weren’t they also sovereign entities not subject to the jurisdiction of Congress?
Some Senators clearly thought so. Howard urged that Indian tribes “always have been in our legislation and jurisprudence, as being quasi foreign nations” and thus could not be deemed subject to U.S. law. Senator Lyman Trumbull (D‐IL) agreed, noting that “it would be a violation of our treaty obligations … to extend our laws over these Indian tribes with whom we have made treaties saying we would not do it.” Trumbull insisted that Indian tribes “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States,” for “[i]t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” 24
Senators Reverdy Johnson (D‐MD) and Thomas Hendricks (D‐IN) disagreed, contending that the U.S. could extend its laws to Indian tribes and had done so on occasion. 25 Senator James R. Doolittle (R‐WI) proposed to put all doubt to rest by adding the words “excluding Indians not taxed” (borrowing from language in Article I) to the Howard amendment. 26 But although there was virtual consensus that birthright citizenship should not be extended to the children of Indian tribal members, 27 a majority of Senators saw no need for clarification. The Senate ultimately defeated Doolittle’s amendment by a 10–30 vote, and then adopted the Howard text without recorded vote. 28
Whatever the correct legal answer to the question of Indian tribes, it is clearly beside the point. The status of Indian tribes under U.S. law may have been ambiguous to members of the 39th Congress. But there is no doubt that foreign countries enjoy no such sovereign status within U.S. borders. And there is likewise no doubt that U.S. law applies to their nationals who enter U.S. territory.
Repeal proponents contend that history supports their position. First, they quote Howard’s introductory remarks to state that birthright citizenship “will not, of course, include … foreigners.” 29 But that reads Howard’s reference to “aliens, who belong to the families of ambassadors or foreign ministers” out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.
Id. at 2890, 2895 (Sen. Howard); id. at 2893, 2894 (Sen. Trumbull) (emphasis added). Id. at 2893–94 (Sen. Johnson); id. at 2894–95 (Sen. Hendricks). 26
Id. at 2890, 2892–93, 2897.
Only Willard Saulsbury, Sr. (D‐DE) expressed disagreement. Id. at 2897. 28
Id. at 2897.
Smith s Lungren; 2005 House Hearing at 3 (Rep. L. Smith); John C. Eastman, “Constitution’s Citizenship Clause Misread,” Wall St. J., Dec. 7, 2005, at A19; John C. Eastman, “Citizens by Right, or by Consent?” San Francisco Chron., Jan. 2, 2006, at B9. 25
Second, proponents claim that the Citizenship Clause protects only the children of persons who owe complete allegiance to the U.S. – namely, U.S. citizens. To support this contention, proponents cite stray references to “allegiance” by Senator Trumbull (a presumed authority in light of his Judiciary Committee chairmanship) and others, as well as the text of the 1866 Civil Rights Act.
But the text of the Citizenship Clause requires “jurisdiction,” not “allegiance.” Nor did Congress propose that “all persons born to U.S. citizens are citizens of the United States.” To the contrary, Senator Cowan opposed the Citizenship Clause precisely because it would extend birthright citizenship to the children of
people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; 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. 30
Moreover, Cowan’s unambiguous rejection of “allegiance” formed an essential part of the consensus understanding of the Howard text. By contrast, the stray references by Trumbull and others to “allegiance” were made during the debate over tribal sovereignty, not alienage generally. Indeed, Trumbull himself confirmed that the Howard text covers all persons “who are subject to our laws.” 31
The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” 32 Repeal proponents contend that all aliens are “subject to …a foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.
But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.” 33
Cong. Globe, 39th Cong., 1st Sess. 2891 (emphasis added). Id. at 2893. See also id. at 2895 (Sen. Hendricks) (if “[w]e can make [a person] obey our laws, … being liable to such obedience he is subject to the jurisdiction of the United States”). 32
14 Stat. 27, § 1 (emphasis added).
Cong. Globe, 39th Cong., 1st Sess. 498. Moreover, as John Eastman (a leading repeal proponent) has conceded, the Fourteenth Amendment’s positively phrased text (“subject to … jurisdiction”) “might easily have been intended to describe a broader grant of citizenship than the negatively‐phrased language from the 1866 Act” (“not subject to any foreign power”). 2005 House Hearing at 63; http://www.heritage.org/Research/LegalIssues/lm18.cf. Eastman cites the legislative history of the Fourteenth Amendment to eliminate the gap – suggesting that the Act does little work for repeal proponents. 31
Finally, repeal proponents point out that our nation was founded upon the doctrine of consent of the governed, not the feudal principle of perpetual allegiance to the sovereign. 34 But that insight explains only why U.S. citizens enjoy the right of expatriation – that is, the right to renounce their citizenship – not whether U.S.‐born persons are entitled to birthright citizenship.
History thus confirms that the Citizenship Clause applies to the children of aliens. To be sure, members of the 39th Congress may not specifically have contemplated extending birthright citizenship to the children of illegal aliens, for Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment. 35
But nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens. To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.
The original understanding of the Citizenship Clause is further reinforced by judicial precedent.
In United States v. Wong Kim Ark (1898), the U.S. Supreme Court confirmed that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship under the Fourteenth Amendment. Wong Kim Ark was born in San Francisco to alien Chinese parents who “were never employed in any diplomatic or official capacity under the emperor of China.” After traveling to China on a temporary visit, he was denied permission to return to the U.S.; the government argued that he was not a citizen, notwithstanding his U.S. birth, through an aggressive reading of the Chinese Exclusion Acts. 36
By a 6–2 vote, the Court rejected the government’s argument:
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. … To 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
Edward J. Erler, “From Subjects to Citizens: The Social Compact Origins of American Citizenship,” in The American Founding and the Social Compact 163–97 (2003).
Kleindienst v. Mandel, 408 U.S. 753, 761 (1972) (“Until 1875 alien migration to the United States was unrestricted.”). 36
169 U.S. 649, 652–53.
European parentage, who have always been considered and treated as citizens of the United States. 37
This sweeping language reaches all aliens regardless of immigration status. 38 To be sure, the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe (1982).
Plyler 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.