Unconditional Birthright Citizenship, Part one — The Origins

The Constitution as written left the question of citizenship largely to the States. Any citizen of a State was considered a citizen of the United States. This sufficed until the end of the Civil War, when all slaves were then free persons but they did not meet any legal definition of citizenship at the time. That problem was taken up by Congress in 1866.

The Words of the Constitution and the 14th Amendment, plus the words of the members of congress who wrote and passed it.

We have the words of the Senators and Congressmen who, in 1866, wrote and passed the 14th Amendment — “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside” — to inform us of what those words mean. We can find them in the Congressional Record.

Citizenship as defined by the Constitution was not controversial before 1866, and derived mainly from English Common Law, but that did not resolve the issue of citizenship for freed slaves in 1865. That was taken up by Congress in 1866, in the form of a Constitutional Amendment. The author of the 14th Amendment was Senator Jacob M. Howard. As he declared in Senate records:

<Quote>The first amendment is to section one, declaring that 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”. I do not propose to say anything on that subject except that the question of citizenship has been 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 United States, and subject to their jurisdiction [emphasis mine], 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[emphasis mine], 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.<unquote> [Congressional Globe, 39th Congress (1866) pg. 2890]

The phrase “Subject to the jurisdiction thereof” qualifies the phrase “persons born in the United States”, and limits the reach of that phrase so it does not include all persons born in the United States, but only those meeting the qualification stated. Who are those that do and do not meet that qualification?

That qualifying phrase was introduced by Senator Lyman Trumbull, who was the author of the 13th Amendment which abolished slavery in 1864. Trumbull said of his provision —

<quote>The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means [emphasis mine]…Can you sue a Navajo 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 [members of Native Nations] are not subject to our jurisdiction. If they were, we wouldn’t make treaties with them…It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.<unquote> [Congressional Globe, 39th Congress (1866) pg. 2893]

Senator Howard continued —

<quote>I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

…All this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power — for that, no doubt, is the meaning of the committee who have brought the matter before us — shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States [emphasis mine].<unquote> [Congressional Globe, 39th Congress (1866) pg. 2895]

The plain words of these senators is that children of parents who are citizens of any country other than the United States are thereby also citizens of that other country and subject to that country’s jurisdiction, and therefore can not be said to be “not subject to some foreign power”. That situation limits the jurisdiction of the United States over those parents and child, and therefore they fail the qualification of “full and complete jurisdiction”.

Representative John Bingham spoke on the floor of the House of the civil rights of US citizens —

<quote>I find no fault with the introductory clause [S 61 Bill], 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 [emphasis mine] is, in the language of your Constitution itself, a natural born citizen…<unquote> [Congressional Globe, 39th Congress (1866) pg. 2891]

In this manner, Congress achieved their primary goal: they included freed slaves as US citizens by means of the artifact that they were not citizens of any other country and therefore did not owe allegiance to any foreign sovereignty, and therefore were under the “full and complete jurisdiction of the United States”.

Examples of those not included in birthright citizenship were presented by Senator W. Williams —

<quote>In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with [Native American Nationals]… I understand the words here, ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States [emphasis mine].<unquote> [Congressional Globe, 39th Congress (1866) pg. 2897]

The fundamental test of the qualification is citizenship in some other country. If the parents are citizens in another country, the child is also a citizen of that country and is subject to the jurisdiction of that sovereignty. As such, the authority of the United States over the parents and child is limited, is not “full and complete”. The US cannot compel jury duty from a foreign citizen, for instance. The US cannot conscript them into military service. They are exempt from US income tax laws that apply to our citizens, subject only to those applicable to aliens. They are exempt from most mandates, for example, mandates regarding health insurance under Obamacare. Therefore, the United States does not exercise “full and complete jurisdiction” over foreign nationals.

The plain words of the 14th Amendment and the clear words of the Congress that wrote and passed it are that the 14th amendment was not intended to confer citizenship on children of foreign nationals. The fact of birth on US soil was incidental to those who wrote and passed the 14th Amendment; the key fact is that the child is a foreign citizen upon its birth and does not qualify for birthright citizenship.

Which raises the question: how did we get from there to unconditional birthright citizenship. Find that discussion in Part Two.

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