If you think today’s anti-immigrant feelings are fierce, you should travel back to 1866 and read the Senate debate surrounding the wording of the proposed 14th Amendment, which clearly makes anyone born in the United States, “and subject to the jurisdiction thereof,” a citizen.
In fact, you ought to do that no matter what you think about immigration, legal or otherwise, especially now that the 14th Amendment is, once again, under attack; this time from the White House.
That amendment, spearheaded by Republicans, was written primarily to make U.S. citizens of all former slaves, freed recently both by the Civil War and the ratification of the 13th Amendment. But it didn’t take long for the debate to swing to other so-called undesirables, especially Chinese, Gypsies and “wild Indians,” to use vernacular of the day that sounds out of place and offensive to modern ears.
Sen. Edgar Cowan, himself a Republican from Pennsylvania, demanded to know, “Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”
In the context of 1866 America, these were ideas that, to many, sounded outrageous and preposterous.
The answer came from Sen. John Conness, a Republican from California who wasn’t afraid to express radical ideas out loud. If his “friend from Pennsylvania” knew the Chinese, he wouldn’t be so concerned, he said. Conness then said that yes, he intended to make their children born in this country citizens, as well as “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.”
He felt this way despite his belief that most of California’s Chinese residents intended to return to their native land at some point.
In recent years, the 14th Amendment has come up again and again, parsed and worried over by people who lament undocumented aliens reportedly streaming over the border to deliver “anchor babies,” or by what the Washington Post confirmed three years ago is an annual influx of about 36,000 “birth tourists,” people who come here from East Asia, Eastern Europe or Nigeria with legal visas, intending to give birth to a citizen child and return home.
Now a Republican president, Donald Trump, has said he intends to end the concept of birthright citizenship through executive order, something many legal experts say cannot be done.
Eight years ago, when the 14th Amendment came up, Jeff Sessions, currently the attorney general but then a senator from Alabama, said he wasn’t sure what the drafters of the amendment had in mind, “but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen.”
However, it’s quite easy to learn what the drafters had in mind. A transcript of debates in the Congressional Globe is available on memory.loc.gov. The answer is that many of them had an expansive view on the subject, during a time of intense racism and nationalism.
Their view was so expansive that it cost them politically. Conness, for example, lost a re-election bid because of his friendly view toward the Chinese.
But in 1866, there was no such thing as an undocumented alien, and that, for many, is what matters now.
By 1882, Congress had made it illegal for any Chinese, except students and diplomats, to immigrate to the United States. That inadvertently gave rise to United States vs. Wong Kim Ark, an 1898 case involving a Chinese man, born on U.S. soil to parents living here legally, who was denied re-entry to the country after a trip to China.
The Supreme Court ruled that Ark was a U.S. citizen. It referred to English common law and said when the 14th Amendment refers to people “subject to the jurisdiction” of the United States, it refers to anyone residing here except foreign diplomats or rulers, or people born to hostile enemies of the nation.
Since then, the United States has passed extremely restrictive immigration laws, then modified them. It has traveled a never-ending cycle of concern over aliens taking jobs and changing the culture.
No longer are people of Chinese origin excluded. Native Americans finally obtained citizenship in 1924. And then in 1965, Congress began restricting immigration from Mexico for the first time.
The history isn’t always pretty. And no, courts have not yet ruled definitively on the status of children specifically born to undocumented immigrants. But the record of intent regarding the 14th Amendment seems clear.
If the president persists in trying to end birthright citizenship, the courts may get their chance to weigh in. But if that amendment is altered, it could change something fundamental about the United States.