If original intent means anything when understanding the Constitution, it pays to listen to what the folks in the Senate said when debating the 14th Amendment and its clause establishing birthright citizenship, nearly 160 years ago.
No one beat around the bush. To the senators of that day, fresh from the violence and divisions of the Civil War, the main point of the amendment was to provide full citizenship and voting rights to former slaves. But the full consequences of the wording — “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” — was the subject of some debate.
Sen. Edgar Cowan of Pennsylvania wasn’t as concerned about the newly freed slaves as he was about the Chinese people who had come to this country, perhaps temporarily, to perform physical labor. Those folks, at the time, were a big worry in California.
The China issue
“I am really desirous to have a legal definition of ‘citizenship of the United States,’” Cowan said in a floor debate on May 30, 1866. “Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”
As I have written before, these ideas, in the context of 1866 America, were considered outrageous and preposterous to many people.
Sen. John Conness of California, himself an immigrant from Ireland, answered that the amendment would indeed relate “to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.”
I read all of this years ago in The Congressional Globe, which provides a transcript of all Senate debates back then.
Conness said he felt as he did despite his belief, typical of the day, that California’s Chinese residents intended to return to their native land at some point.
The senator who drafted the citizenship part of the 14th Amendment, Sen. Jacob Merritt Howard of Michigan, said: “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.”
Trump’s desire
This has become an issue once again because President-elect Donald Trump, in an interview last weekend, said he would “end” birthright citizenship on the first day of his second term. He spoke about doing this during his first term, as well.
As the Deseret News’ Samuel Benson reported in a thorough piece on Tuesday, many scholars say neither the president nor Congress has the authority to interpret a constitutional amendment.
Utah Sen. Mike Lee believes Congress can indeed play a role, posting on social media that it “could pass a law defining what it means to be born in the United States ‘and subject to the jurisdiction thereof,’ excluding prospectively from birthright citizenship individuals born in the U.S. to illegal aliens.”
One thing is certain. An executive order changing the Constitution would ignite a legal battle, likely involving the Supreme Court.
The last time the 14th Amendment was in the news, Josh Blackman, an associate professor of law at the South Texas College of Law Houston, who specializes in constitutional law, wrote an essay for the Cato Institute that cited much of the history I’ve reviewed here.
“The legal arguments against birthright citizenship are inconsistent — not only with the history of the 14th Amendment, but with over a century of practice, in which all governmental branches have recognized the children of foreign nationals as citizens,” he said, adding, “Birthright citizenship is correct as an original matter …”
The role of Congress
Whenever I write about this, I get accused of advocating for open borders. I am not. Congress and the president have the power, and the duty, to enact immigration reforms that would help solve any crisis at the border. They have refused to do so for many years, choosing instead to criticize the opposite political party for mishandling things.
I have no doubt Sen. Conness, were he around today, would tell them they can solve this, and do so without touching the 14th Amendment or its original intent.