Recent remarks by Senator Lindsay Graham (R-SC) and a few other Republican members of Congress suggesting that the children of illegal immigrants who are born here are not entitled to citizenship opens a very important issue to debate.  Sen. Graham, a lawyer well-schooled in constitutional law, has read the relevant U.S. Supreme Court opinions interpreting sec. 1 of  the 14th Amendment to the U.S. Const. (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”)(emphasis added)(hereafter “14th Amendment”), and concludes, that it may be necessary to amend this language in order to deny these children citizenship.  I disagree.  As I discuss in this post, the original intent of the 39th Congress, which enacted the 14th Amendment in 1866 was never to provide citizenship to people in the country illegally, much less their children.  The Supreme Court has never directly held that this is what the Constitution requires,  although in 1898 it came close to doing so and created uncertainty which persists to this day.

Here is the relevant history.  In January 1866, just months after the end of the Civil War, Congress created a Joint Committee on Reconstruction (“the Joint Comm.”) charged with proposing relevant legislation to enfranchise the freed black slaves.  Senator Lyman Trumbill (R-Ill), Chairman of the Judiciary Committee and a member of the Joint Comm., introduced the 1866 Civil Rights Act.  It was enacted over President Andrew Johnson’s veto and provided, in relevant part: “That 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…”  14 Stat. 27 (April 9, 1866)(emphasis added); Hurd v. Hodge, 334 U.S. 24, 31 n.7 (1948).  There can be no doubt that the clause I have italicized was intended to exclude the children of aliens (foreign citizens) from U.S. citizenship.  This is the import of the text, and it was one reason Representative John Bingham (R-OH), a key member of the Joint Comm., opposed it.  Bingham was  “a devout Christian whose religious beliefs deeply influenced his political and legal views.”  Bryan H. Wldenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67,68 Ohio St. L.J. 1509, 1520 (2007).  Bingham favored “a higher law given by a voice out of heaven. Ye shall have the same law for the stranger as for one of your own country.”  Cong. Globe, 39th Cong., 1st Sess. at 1292.  But Bingham was also a strict constructionist who did not see any explicit provision of the Constitution which authorized Congress to enact a bill overturning state laws on racial questions.  So he ended up opposing the Civil Rights Act.  Oregon v. Mitchell, 400 U.S. 112, 161 (1970). 

The Civil Rights Act was perceived by Congress as inadequate to protect blacks from ongoing discrimination, including the refusal of some judges to permit them to testify as witnesses in court proceedings, black codes in the South and other state-sanctioned unequal treatment.   Thus, on May 23, 1866 Sen Jacob Howard (R-MI) introduced the 14th Amendment to the Constitution to accomplish the goals of the Civil Rights Act.  Robert J. Shulman, Children of a Lesser God: Should the Fourteenth Amendment be Altered or Repealed to Deny Automatic Citizenship Rights and Privileges to American Born Children of Illegal Aliens?, 22 Pepp. L. Rev. 669, 714 (1995).  Rep. Bingham drafted sec. 1 of the Amendment, excluding the citizenship clause, which was added in the Senate at the insistence of Sen. Howard.   Wildenthal at 1532.  It is necessary to keep in mind that sec. 1 of the 14th Amendment consists of two sentences.  The first one,”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”  (emphhasis added).  Court decisions refer to this as the “Citizenship Clause” (although it is a sentence not a clause).  The second sentence of sec. 1 prohibits the states from depriving people  of the “privileges and immunities” of the laws and also gurantees “equal protection of the laws” and the requirement of “due process.”  I will come back to the differences between the Citizenship Clause and the second sentence of sec. 1 later.

The Citizenship Clause was added belatedly by the Senate after the second sentence of sec. 1 was drafted and passed the House, mainly to erase any doubts about the citizenship of the freed slaves.  Wildenthal at 1620.   Sen. Howard stated: “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.  This will not, of course, include persons born in the United States who are foreigners, aliens, 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.”  Cong. Globe, 39th Cong, 1st Sess. at 2890.  Senators proceeded to debate whether Indians on reservations would become U.S. citizens.  In answer to this question, Sen. Lyman Trumbill (R-Ill.), Chairman of the Judiciary Committee, answered that they would not be citizens because of the second part of the Citizenship Clause (“and subject to the jurisdiction thereof”).  He stated: “That means ‘subject to the complete jurisdiction thereof… Not owing allegiance to anybody else.”  Id. at 2893.   Since Sen. Trumbill made these comments during the debate about application of the Citizenship Clause to Indians, it is possible he and his fellow senators intended the Clause to provide for birthright citizenship to all non-Indians.  But I don’t think that can fairly be inferred from the discussion.  For one thing, the states never recognized birthright citizenship to “non-whites” before the enactment of the Civil Rights Act of 1866.  Wildenthal at 691.  Secondly, according to Professor Wildenthal’s exhaustive analysis of the debates and the drafting, the members of the Joint Comm. “considered very carefully the precise language of the Amendment, including the use of ‘citizen’ or ‘person’ in different clauses.  They used ‘person’ in the Due Process and Equal Protection clauses- but not the Privileges and Immunities Clause- precisely to include aliens.”  Id. at 1622.  Therefore, the use of the word “persons” in the Citizenship Clause would, accordingly, have meant birthright citizenship to all aliens if it were not unqualified.  But, it was not left unqualified.  It was followed in the same sentence by the phrase “and subject to the jurisdiction thereof.”  Thus,  Rep. Bingham stated in the debate over the due process and equal protection clauses of the second sentence of sec. 1: “Is it not essential to the unity of the people that all persons, whether citizens or strangers within this land, shall have equal protection in every State in the Union in the rights of life and liberty and property?” Cong. Globe, 39th Cong., 1st Sess., 1090 (1866)(emphasis added).  Rep. Bingham chose his words carefully.  He believed strangers should have equal protection so they could not be deprived of their life, liberty or property without due process.  But he did not believe strangers were entitled to citizenship. 

Thus, in order to understand the original intent of the drafters of the 14th Amendment, one must examine the two sentences of sec. 1 individually.  And one needs to read the entire first sentence, including the limiting phrase “subject to the jurisdiction thereof.”  Few of the news reports of the issue that I have heard do so.  I also do not believe Sen. Graham has done so.

 The first Supreme Court case interpreting the Citizenship Clause construed the phrase “subject to the jurisdiction thereof” to “exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”  Slaughter-House Cases,83 U.S. 36, 73 (1872).  However, the facts of the case, a challenge to a state-created animal slaughtering monopoly, did not involve citizenship.  Thus, the Court’s comments were dicta, of limited precedential value. 

In 1884 the Supreme Court, in an opinion by Justice Gray, affirmed lower court decisions denying citizenship and the right to vote to an Indian born in the United States who had “fully and completely surrendered himself to the jurisdiction of the Unitred States…”   Apparently the Indian wanted nothing further to do with his tribe and did everything he possibly could do to become a U.S. citizen short of naturalization. A local official in Omaha refused to register him to vote, doubting his citizenship and this bringing on the litigation.   The Indian’s argument was he was a citizen by virtue of birth pursuant to the 14th Amendment and did not need to become naturalized.   The Court rejected this argument.  Elk v. Wilkins, 112 U.S.  94, 103 (1884).  Under the Court’s interpretation of the Citizenship Clause non-citizens could only become citizens if the U.S. governemt consented.  “[N]o one can become a citizen of a nation without its consent…”  Id.  Accordingly, “Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized…”  Id. at 102 (emphasis added).  The Court plainly rejected the notion of birthright citizenship,  construing the concept of citizenship to mean more than just physical presence and requiring formal political allegiance, which as I will show below,  was foreign to the English common law.  I add that neither of these two Supreme Court cases found the phrase “subject to the jurisdiction thereof” in the Citizenship Clause to be ambiguous.

However, in 1898 Justice Gray, perhaps  influenced by the impact of the Chinese Exclusion Act or the thinking of his former law clerk Louis Brandeis, the son of immigrants, dramatically altered his thinking.  In a long, rambling opinion which purported to survey the entire history of the legal concept of citizenship, he reached the conclusion everyone in the United States was “subject to” its jurisdiction except for foreign diplomats and the citizens of nations at war with us.  Therefore, the Chinese man who brought the suit to obtain U.S. citizenship was indeed a U.S. citizen by virtue of his U.S. birth even though his parents were born in China and had not become naturalized U.S. citizens.  In other words, Justice Gray introduced the concept of “birthright citizenship” for aliens.  United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898).  The opinion is completely unpersuasive when read in the context of the history I have laid out here.  One cannot read Justice Gray’s Elk opinion and this one without concluding something dramatic happened to change his thinking.  But that something is simply not identified in the Wong Kim Ark opinion.  there was no change in U.S. immigration law in the ensuing 15 years.  So I conclude Justice Gray had changed his view of immigration but that change was political, not legal.  He evidently believed the country needed more immigrants and wanted to rule in favor of the Chinese man and thus bring about a major change in immigration law rather than let Congress do so.    

Despite its considerable length, the Wong Kim Ark reasoning is unpersuasive for three important reasons.  First, Courts are supposed to interpret laws (and the Constitution is law) from the language used.   Absent an ambiguity in the text a judge should not resort to secondary sources, such as the legislative history, or the English common law meaning of a word, or anything else, to interpret it.  See, e.g., Exxon Mobil Corp. v. Allapath Services, Inc., 545 U.S. 546, 568 (2005)(“As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.  Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light  on the enacting Legislature’s understanding of otherwise ambiguous terms”). Justice Gray acknowledged this rule of construction, Wong Kim Ark, 169 U.S. at 699,  but simply did not follow it.   So despite the two Supreme Cases that had previously interpreted the meaning of the phrase “subject to the jurisdiction thereof,” he went fishing around in older cases for something more to his liking.  He found an admiralty case from 1812, 54 years before the  the 14th Amendment was even written, interpreting the word “jurisdiction” (a word with numerous meanings in the law) over a foreign vessel.  Id. at 688.  That 1812 decision was written by the famous Chief Justice John Marshall, and held the particular boat was under U.S. jurisdiction by virtue of being in U.S. territorial waters, even absent a statute so saying.  This does not answer the question of whether the children of aliens are U.S. citizens. 

Second, Justice Gray traced the history of the federal naturalization statutes, enacted from 1790 to 1855 (the one in effect at the time ), which actually show none of them provided for birthright citizenship to the children of aliens.  Then he made the stunning conclusion, without any support, that the United States had always adhered to the rule of birthright citizenship.  Id. at 674.  Not only did the federal statutes not bear him out, but they conclusively prove the Justice was dead wrong.  The 1790 naturalization law, as stated in his opinion, allowed only “free white” people to become citizens.  Id. at 654.  Under that rule, Mr. Ark would have lost his case.  The 1855 law only allowed birthright citizenship where at least the father was a U.S. citizen.  Id. at 674.   So under this law Mr. Ark would also have lost his case for citizenship since neither of his parents was a U.S. citizen.

Third, while Justice Gray claimed all American colonies and states adhered to the rule of “birthright citizenship”.   Yet his research failed to unearth a single precedent from any court agreeing with that view. 682.  Needless to say, had the states adhered to the rule of birthright citizenship for all persons, including aliens, then there would have been a slew of such cases.  Apparently the law was clear enough to aliens before 1898 that not a single alien ever sued a state or the U.S. to obtain citizenship. 

Justice Gray’s view of the law was vigorously opposed by two of his fellow justices who wrote a powerful dissent.  I think dissenting Justice Fuller’s most devastating point was that Justice Gray simply did not understand the English common law rule he was supposed to be following.  Apparently, in England the law of domicile (where one lives) was decided by birth, but not allegiance, which was based upon nationality.  Id. at 718.  Thus, an alien born in England would only have been considered a British subject for some purposes not including the right to vote.  American law made no such distinction, so the analogy to the British common law was not apt.  

The Wong Kim Ark decision holds that a U.S. born child of Chinese nationals lawfully in the U.S. is a U.S. citizen.  There is no indication from the opinion that Mr. Ark’s parents were illegal aliens.  So the holding does not technically address the question of whether the children of illegal immigrants are U.S. citizens by virtue of their birth here.  Moreover, Congress has never enacted a law providing that citizenship is acquired at birth to everyone.  The Immigration and Naturalization act simply tracks the language of the 14th Amendment, stating that “a person born in the U.S. and subject to the jurisdiction thereof” is a citizen.”  8 U.S.C. sec. 1401(a).  The law does not define “subject to the jurisdiction thereof.” 

More recently the Supreme Court decided, by a 5-4 vote, that the Equal Protection clause (second sentence) of the 14th Amendment required the State of Texas to provide the children of illegal immigrants with free public education.  Plyler v. Doe, 457 U.S. 202 (1982).  The Court rejected the argument made by Texas that the phrase “within its jurisdiction” at the end of the second sentence of sec. 1 of the the 14th Amendment excludes illegal immigrants.  Citing the comments of Rep. Bingham, which I have quoted above, which were made during the debate over the equal protection clause, Id. at 214 n.13, not the Citizenship Clause, and Senator Howard, 215, the Court concluded that the Equal Protection Clause applies to everyone physically present in the U.S.  Id. at 215.  I tend to agree that the Congress which wrote and ratified the 14th Amendment intended for the Equal Protection clause to apply to aliens.  I do not agree with the modern equal protection analysis, created during the Warren court, requiring heightened scrutiny, i.e., a virtual death sentence for the law, of all classifications in laws addressing alienage.  I don’t believe the 39th Congress would have anticipated that Texas could not require illegal immigrants to pay for their childrens’ public education.  That Congress probably would have wondered why they were here at all. 

The bottom line is the Plyler case does not address the Citizenship Clause of the 14th Amendment.  It does not hold illegal immigrants or their children are U.S. citizens. 

In conclusion, I do not believe the Supreme Court has ever answered the question as to whether the children of illegal immigrants born in the U.S. are U.S. citizens.  Certainly, that is not what the 39th Congress intended to enact into law.  The current Surpeme Court might well interpret the Citizenship Clause according to its original intent.  Or Congress could amend the Immigration and Naturalization Act to restore the original intent of the framers of the 14th Amendment.  But amending the 14th Amendment is not necessary, in my opinion, becuase the Supreme Court has not squarely held that children of illegal immigrants are citizens.  Since the issue is now high on the national agenda, actions by state officials in federal courts to declare “anchor babies” and other children of illegal immigrants non-citizens, might be successful.