On Wednesday, the Supreme Court will hear oral arguments on the constitutionality of President Trump’s executive order aimed at ending birthright citizenship as we have known it. The court’s eventual opinion in the case, Trump v. Barbara, will almost certainly hinge on how the justices interpret the 14th Amendment’s Citizenship Clause, which says: “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.”
The court will probably also respond to the first words of the president’s March 19 brief, which asserts that “The ‘main object’ of the Citizenship Clause was to grant citizenship to freed slaves and their children.” That is a polite version of a more informal claim he has made elsewhere, that birthright citizenship was intended only for “the babies of slaves.”
However the court decides, history shows that Mr. Trump is wrong.
Yes, the 14th Amendment affirmed the citizenship of all Black Americans, most of whom were either newly freed or descended from people who had been enslaved. However, Mr. Trump’s extremely narrow interpretation disregards the historical record. The Senate arrived at the final language of the Citizenship Clause only after a robust debate about the implications of writing birthright citizenship into the Constitution.
The 39th Congress took up the citizenship question amid a broader effort to set the nation on a new, more inclusive course after the Civil War. At the end of 1865, it established a Joint Committee on Reconstruction, which began drafting the 14th Amendment.
The House passed a version of the amendment that did not include the now familiar Citizenship Clause. In the Senate, however, Jacob Howard, Republican of Michigan, argued that such a clause was needed. He noted the absence of a concrete definition of citizenship — and who was entitled to it — in the existing Constitution: “It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States,’ although that expression occurs twice in the Constitution.”
Senator Benjamin Wade of Ohio offered this reply: “I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States.” Here Wade took a position widely shared among Republicans, and among Black activists of the era, that previous efforts to exclude free Black Americans from citizenship, including Chief Justice Roger Taney’s 1857 opinion in Dred Scott v. Sandford, ran counter to the common law tradition Americans had adopted at the nation’s founding.
Senator William Fessenden of Maine probed the limits of Wade’s view by bringing immigrants into the picture: “Suppose a person is born here of parents from abroad temporarily in this country.” Wade held to his interpretation, granting only a narrow concession founded in English common law. By a “fiction of law,” he said, “the children of foreign ministers” were excluded from birthright citizenship.
During another round of deliberations on the wording of the amendment, Senator Howard returned to the issue of citizenship, asserting that the amendment needed to clear the matter up. He proposed the wording that was the basis for the Citizenship Clause, which, he said, was “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.”
Senator Edgar Cowan of Pennsylvania was incredulous that his colleagues intended to extend citizenship so broadly. He asked, “Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?”
Cowan continued with a statement that presaged the blood-and-soil populism that is part of today’s political debates, suggesting that if the children of Chinese immigrants, for example, desire the rights of a citizen, they should look to China, not the United States: “If I desire the exercise of my rights I ought to go to my own people, the people of my own blood and lineage.” Cowan prompted Senator John Conness of California to weigh in. Conness, who had himself emigrated from Ireland, affirmed the inclusive principle generally supported by Republicans of that era: “I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States.”
Later in the debate, Senator Thomas Hendricks, a Democrat from Indiana, argued that the very nature of American citizenship would be degraded if it were extended to “the Negroes, the coolies and the Indians.” As crudely as that sentiment might strike us today, it did serve to illustrate clearly that what was up for debate was not citizenship for only Black Americans but also for people of many different ethnicities and origins.
In 1866, the amendment was approved by both houses of Congress. It was ratified by the states in 1868.
As the legal scholar Garrett Epps has explained, looking back from today we cannot exhaustively discern the intent of the men who produced the amendment and its birthright provision. We can, however, be certain of what they said on the public record. Senators discussed two specific exceptions to birthright citizenship: the children of foreign diplomats and those of American Indians belonging to sovereign nations. It was understood that under common law, children born to occupying armies were not birthright citizens. Though some lawmakers urged otherwise, Congress never excluded the children of immigrants from birthright citizenship. As Mr. Epps explained in a 2010 history of the Citizenship Clause, “The language about ‘full and complete jurisdiction’ refers to the legal immunities of these Indians, not in any way to immigrant populations within the United States.”
A final source worth considering is Frederick Douglass, who began his life enslaved and went on to become a free man, political leader, diplomat and statesman. He had been among those who, before the Civil War, insisted that free Black Americans were birthright citizens. In the war’s aftermath, he endorsed the capacious essence of the 14th Amendment in a speech titled “Composite Nation.” Of the United States, he said:
We shall spread the network of our science and our civilization over all who seek their shelter whether from Asia, Africa or the isles of the sea. We shall mold them all, each after his kind, into Americans; Indian and Celt, Negro and Saxon, Latin and Teuton, Mongolian and Caucasian, Jew and Gentile, all shall here bow to the same law, speak the same language, support the same government, enjoy the same liberty, vibrate with the same national enthusiasm and seek the same national ends.
To exclude children born here from citizenship because their parents are temporary or undocumented immigrants is to betray both the letter and the spirit of the 14th Amendment. From the start, birthright citizenship was understood as a vehicle by which “all persons” born here would become full members of a newly remade democracy.
Martha S. Jones is the author of “Birthright Citizens: A History of Race and Rights in Antebellum America.” Kate Masur is the author of “Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction.” They filed an amici curiae brief in the Supreme Court birthright citizenship case, Trump v. Barbara.
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