The issues facing the Thirty-Ninth Congress in 1865, were without question monumental in scope, historic in nature and second only perhaps to the Constitutional Convention in Philadelphia in 1787. One created a constitution and the other fundamentally changed it when it passed the Fourteenth Amendment. This amendment is considered by some as the most significant and covers so much ground it can almost be viewed as a mini constitution and has been referred to by some as the “second” constitution.

      In a debate on the House floor, Representative Woodbridge said “But, sir, great responsibilities rest upon the members of the present Congress. We are not writing history, which is difficult; we are making history, which is more difficult still. …… Sir, there has never been a day since the foundation of this Government when all the candor, the calmness, the deliberation, the foresight, the wisdom of Congress has been so imperatively demanded as now.”

      The amendment contains five sections that define citizenship; outlines restrictions on what the states can do; gives congress the power to enforce the restrictions; changes the method of counting population for congressional representation, which in effect removes the Three-Fifths compromise in Article 1 of the constitution and deals with the civil war debt.

     This paper addresses the constitutionality of our government’s interpretation of the birthright clause in Section 1.

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      The prevailing interpretation of the birthright clause in section 1 of the 14th Amendment, and what is being taught in our schools, is that anyone born in the United States is automatically a citizen including children of illegal immigrants. In view of the continual and growing illegal immigrant problem today, the question of whether the 14th amendment grants citizenship to children of illegal parents, or parents who are not U.S. citizens, is a question in dire need of a sound and fair answer. This becomes even more important when you consider that there are those who migrate here illegally only to have their child become a United States citizen which by its nature, ensures that the parent will not be deported. This is commonly referred to as having “anchor babies”. There is also what is called “birth tourism” whereby pregnant women come here legally for the specific purpose of giving birth on United States soil.

      The United States is without question a country of immigrants so it would seem to be a valid question to ask why we should care how the birthright clause in the Fourteenth Amendment is interpreted? One reason we should care is the Center for Immigration Studies said in 2010 that 300,000 to 400,000 children are born to illegal immigrants in the United States every year. That amounts to as many as 1 in 10 births are to a mother who is here illegally. If we extrapolate the 2010 figure to 2015, given the obvious increase in illegal immigrants since 2010, we can guess that there are probably close to a million births or more per year to illegal aliens. If you realize that these children and their parents now have access to welfare benefits, and ultimately initiate chain migration of the child’s extended family and in-laws, it becomes obvious that no matter how one interprets the birthright clause of the Fourteenth Amendment the impact of basically what amounts to uncontrolled immigration is simply not sustainable from an economic point of view, exclusive of the social and other impacts this has as a consequence.

      To their credit, there have been attempts in congress over the past few years, even by former Democrat Senator Harry Reed, to fix this problem but as yet, there appears to be no real desire to do so for one reason or another. Of course, not everyone perceives it as a problem, depending on their agenda and political ideology. Short of going through the process of changing or introducing a new constitutional amendment, which they are not likely to do, there is little congress can do in any event. They could of course write new law or change the current immigration law but they are also unlikely to do that and even if they did, legislative law cannot supersede the constitution. Another way would be through a Presidential Executive Order but that too cannot supersede the constitution. What we are left with then is accepting the current policy and do nothing, enact a constitutional change if needed, or do some type of an administrative change such as an Executive Order, depending on what the birthright clause of the Fourteenth Amendment actually says. It is imperative then that we understand what the birthright clause says, or doesn’t say.

      Previous to the Fourteenth Amendment, the United States did not have an official policy or position on what defined a United States citizen. It was generally thought or assumed that the English common law known in Latin as jus soli ^[1], would cover the citizenship question. Quite frankly, there was no pressing need to define or codify what constituted a United States citizen until the country was faced with what to do with the thousands of newly freed slaves at the end of the Civil War, or War Between the States if you prefer. The Thirteenth Amendment abolished slavery but did not provide civil rights or citizenship to the newly freed slaves. So, the monumental task before the 39^th Congress was what to do with the thousands of freedmen who had no citizenship status and therefore no basic civil rights.

      The Civil Rights Act of 1866, which was enacted over the veto of President Andrew Johnson ^[2], was designed by Senator Lyman Trumbull ^[3] to not only provide civil rights but also included a birthright clause to provide citizenship not only for the freedmen but to establish a general rule of law on citizenship. This birthright clause is very important in understanding the birthright clause in the Fourteenth Amendment, as will be shown later.

      There were major problems or weaknesses inherent with the Civil Rights Act of 1866, however. First, congressional acts like this can be somewhat temporary since subsequent congresses can change it substantially or even nullify it altogether. Second, the Federal Government had no authority to enforce these rights over the southern states, who had enacted their own laws effectively prohibiting the negro from most rights. Third, in regard to citizenship, in 1857 the Supreme Court in Dred Scott v. Sandford (60 U.S. 393) ruled that a negro, slave or not, could not be a citizen of the United States. The Civil Rights Act was certainly not going to supersede the court’s ruling on citizenship and it was basically in-effective in providing rights so the inexorable logic of events made it obvious that a constitutional amendment was going to be needed and thus, the Fourteenth Amendment was born. I would argue that the inexorable logic of events beginning with the Constitutional Convention in 1787, and before, made the Fourteenth Amendment inevitable. But that’s a subject for another day.

      Section 1 of the Fourteenth Amendment defines two types of citizens, or if you prefer, two ways of becoming a citizen, natural born and naturalization. One might very well ask why the Negro didn’t automatically become a citizen with the passing of the Thirteenth Amendment which abolished slavery. The slaves did become freedmen at that point but abolishing slavery was one thing and providing citizenship or otherwise making the Negro equal with the whites was quite another and simply a bridge too far for some. To understand the prevailing attitude toward the African Negro in both the south and the north, slave or not, we need look no further than the man who would become known as the "Great Emancipator", Abraham Lincoln. In his fourth debate with Stephen Douglas in 1858, Lincoln said:

"I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races, [applause]-that I am not nor ever have been in favor of making voters or jurors of Negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race."

In the same debate, Lincoln also said:

"He shall have no occasion to ever ask it again, for I tell him very frankly that I am not in favor of negro citizenship." 

      Abraham Lincoln’s view of the negro is fairly representative of most whites at the time and it is interesting to note what Massachusetts Senator, and extreme abolitionist, Charles Sumner wrote in 1834 when seeing slaves for the first time.

 “My worst preconception of their appearance and their ignorance did not fall as low as their actual stupidity. They appear to be nothing more than moving masses of flesh unendowed with anything of intelligence above the brutes.”

      As a legal matter the Supreme Court ruled in 1857, in Dred Scott v. Sandford, 60 U.S. 393 (1857), that a negro whether slave or not, could not be an American citizen. In writing the majority opinion Chief Justice Roger B. Taney said:

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”   

      What this illustrates is that being against slavery and considering the negro as anything other than inferior and subordinate to whites, was not the same thing and that is an important distinction to keep in mind. While it is easy to judge these views as racist, one has to first realize what it would have been like, as Senator Charles Sumner did, to view a totally uneducated African put to slavery on a plantation. While the view of Lincoln and others of his day toward the African slave, and tribal Indians for that matter, shows a certain amount of ignorance, it is also somewhat understandable given the circumstances of the day.

      Still, some type of status for the new freedmen needed to be established and there were those, such as Senator Lyman Trumbull, author of the Civil Rights Act of 1866, who obviously realized that at the very least some civil rights had to be given to the Negroes. So, he included in the act the clause that “all persons born in the United States are declared citizens, excluding Indians who are not taxed, and those who are subject to a foreign power.” This act is the first attempt to define what constitutes a U.S. Citizen and was probably included, at least in part, to nullify the Dred Scott case. It is important to note the wording in the Civil Rights Act of “subject to a foreign power” and the wording in the Fourteenth Amendment of “subject to the jurisdiction” which is key in understanding the birthright clause.

      The first sentence in Section 1 of the Fourteenth Amendment:

 “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.”

      As previously stated, the prevailing opinion and policy of the United States on citizenship is that anyone born on United States soil is automatically a citizen. Also as previously stated, that policy is identical to the English common law known as jus soli. When you look at the birthright clause in the Fourteenth Amendment, however, you immediately see a caveat limiting those who qualify to be citizens. The way it actually reads then is “all persons born in the United States that are “subject to the jurisdiction” thereof are citizens by birth, all others are not except those naturalized. Common sense and logic would then seem to dictate that you cannot have a policy of jus soli if you restrict or limit who it applies to. There are admittedly, somehow controversies over what “subject to the jurisdiction” means though so we will have to address that. Those who believe we have a jus soli birthright policy think that being under the jurisdiction of a country simply means having to obey their laws. That is not only an extremely simplistic view of jurisdiction, but to believe it you also have to ignore and/or mis-interpret other obvious aspects such as what the congress who passed it thought it meant.

      Before looking at what congress thought “under the jurisdiction” meant when they debated the issue, let’s look at what the Supreme Court concluded in Elk v. Wilkins (112 U.S. 94 1884). First though, we need to look at the birthright clause that was in the Civil Rights Act of 1866:

“all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;”

      What we see in the birthright clause of the Civil Rights Act is close to being identical to the constitutional birthright clause with one important exception. The caveat regarding Indians not taxed is obviously different but the important difference is it tells us who is limited in the clause and that is anybody that is “subject to a foreign power”. Someone who is subject to a foreign power is obviously someone who is a citizen of another country and someone who is a citizen of another country is by definition not “subject to the jurisdiction” of the United States under the common definition of citizenship and international law. In this context then, jurisdiction logically means the United States has or does not have jurisdictional control of the person as a citizen. It also means that under the Civil Rights Act of 1866, we do not have a Jus soli policy.

         Some have argued that since the wording in the Civil Rights Act and the Fourteenth Amendment are different, the two clauses had different meanings. Elk v. Wilkins, however, concluded that the courts could look to the Civil Rights Act to resolve any ambiguities in the meaning of the Fourteenth Amendment. Basically, to paraphrase, the court said that if you have any problems with understanding what jurisdiction means, you can use “not subject to any foreign power”. What that means contextually is an illegal alien, or foreigner, is by definition a citizen of another country and are thereby subject to that country’s jurisdiction and conversely not subject to the jurisdiction of the United States. This then says that our constitutional birthright policy is, or should be, jus sanguinis ^[4], or citizenship of parents, which is the policy of most countries of the world, rather than jus soli, or citizenship by location.

      Most scholars who argue for jus soli, however, believe Elk v. Wilkins is not relevant because it deals with an Indian and Indians were dealt with differently. While that may be true, land that was considered to be Indian land, was considered sovereign land and that in turn means Mr. Elk would not have been born on United States soil. That fact would seem to make the case irrelevant to the birthright clause but its relevancy lies in the “jurisdiction” aspects of it and in its comparison to the wording in the Civil Rights Act of 1866. In Elk v. Wilkins, an Indian who had been born on Indian land was denied the right to vote because he was not a citizen. Elk complained that he had given up his allegiance to his tribe and vowed allegiance to the United States and therefore was under the jurisdiction of the United States.  

      While the definition of jurisdiction in the context of the birthright clause seems rather clear, I would put it in more simple and practical terms. I am a citizen of California but when I cross the border into the state of Nevada my “jurisdictional citizenship” does not change. I am under the jurisdiction of Nevada in that I have to comply with all their laws but Nevada has no legal jurisdiction over me, nor I to it, as a citizen to pay taxes, vote, serve as a juror or any other legal jurisdictional matters equated with citizenship. So, while I am in Nevada, or any other state or country, my jurisdictional citizenship remains with California and the United States just as the jurisdictional citizenship of someone who comes here illegally, or legally, remains with the country they are citizens of. To the point, foreigners cannot change their citizenship simply by walking across our border.     

      Before reviewing relevant law and court cases we need to understand what the people who framed and passed the Fourteenth Amendment thought “jurisdiction” meant. When the Fourteenth Amendment was before the Senate and the House there was considerable debate by both on who all would be included in the birthright clause ^[5]. I will not cover it all but there was definitely concern about it covering some Indians, Chinese and so forth. Most of it was based on fear and prejudiced but nevertheless it shows a clear intent to limit who the birthright clause applied to and it is quite clear that had it applied to just anyone born on United States soil, jus soli, the amendment would not have passed; at least with the birthright clause in it. Senator Lyman Trumbull, who was head of the Judiciary Committee, and who I mentioned earlier introduced the Civil Rights Act of 1866, was very blunt and to the point about describing what was meant about being under the jurisdiction of the United States when he said  “What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else. That is what it means”

      What Senator Trumbull means is, jurisdiction means not being a citizen of another country since it is understood by all that citizenship, by its definition requires allegiance to one’s country. Senator Trumbull also said in regards to American Indians, who were not granted U.S. Citizens until the American Indian Citizenship Act was passed in 1924: “it cannot be said of any indian who owes allegiance, partial allegiance if you please, to some other Government that he is subject to the jurisdiction of the United States.”. One can by extension and meaning apply Senator Trumbull’s statement to those who are in the United States illegally since an illegal alien is without question and definition a citizen of another country and therefore owes at least some amount of allegiance to their country if not complete allegiance. One simply cannot be a citizen of one country and owe allegiance to another country under the basic definition of citizenship.

Senator Jacob Howard ^[6], a Republican from Michigan, who introduced the Fourteenth Amendment to the Senate as a member of the Reconstruction Committee, said: “This will not, of course, include persons born in the United States who are foreigners, aliens, [or those] who belong to the families of ambassadors or foreign ministers”. There are those who believe that Senator Howard is merely pointing out that diplomatic families were not included in the birthright clause. His statement is admittedly open to interpretation, but it appears to be more logical that he was identifying three classes of people who would not be included under the birthright clause. To simply point out something that would be obvious to the members of congress regarding diplomatic families seems a little odd.