Birthright Citizenship and the Fourteenth Amendment

By on April 19, 2011

Was the Fourteenth Amendment meant to confer citizenship to all persons born within U.S. borders? Two legal scholars debate the issue.

edward-erlerEdward J. Erler
Claremont Institute

Edward J. Erler is professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. He is the co-author of The Founders on Citizenship and Immigration.


garrett-eppsGarrett Epps
University of Baltimore

Garrett Epps is professor of law at the University of Baltimore and author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006), a finalist for the American Bar Association’s Silver Gavel Award.

Part 1: Edward J. Erler: Citizenship and the Fourteenth Amendment

A serious debate about the meaning of the Fourteenth Amendment’s citizenship clause (“All persons born or naturalized in the United States, and subject to its jurisdiction thereof, are citizens of the United States and of the State wherein they reside”) has arisen in recent years, provoked by issues surrounding the question of illegal immigration. It has been assumed as a matter of course that the citizenship clause means that all persons born within the geographical limits of the U.S. are automatically citizens of the U.S. But there are several flaws in this assumption that are easily demonstrated.

A Superfluous Clause?

The Fourteenth Amendment specifies two requirements to become a natural born citizen—an individual must be born in the territory of the U.S. and be “subject to the jurisdiction” of the U.S. If it is argued that everyone born in the U.S. is automatically subject to the jurisdiction of the U.S., then the jurisdiction clause is rendered superfluous. But, of course, no interpretation of a written Constitution can render any of its provisions without force or effect—this would be tantamount to an amendment of the Constitution by mere interpretation.

If the framers of the Fourteenth Amendment had intended that everyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction, they would simply have omitted the jurisdiction requirement—precisely what liberal constitutionalists have done in their insistence on automatic birthright citizenship.

The Framers of the Fourteenth Amendment

Senator Jacob Howard of Ohio was the author of the citizenship clause. During Senate debate, he defended his handiwork against the charge that it would make Native Americans citizens of the U.S. “Indians born within the limits of the United States, and who maintain their tribal relations,” he assured the Senate, “are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.” Indians, he averred, were not “subject to the jurisdiction” of the U.S. because they owed allegiance—even if only partial allegiance—to their tribes. Thus for the framers of the Fourteenth Amendment, birth within the geographical limits of the U.S. did not automatically make one subject to the jurisdiction of the U.S.

And “jurisdiction” did not mean, as liberal constitutionalists argue, simply subject to the laws of the U.S. or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the U.S. Not all who are subject to the laws owe allegiance to the U.S. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “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.”

This view of the citizenship clause was confirmed by a Senate Judiciary Report issued in 1870. Indians, of course, were born within the geographical limits of the U.S. but were not subject to its jurisdiction because they did not have exclusive allegiance to the U.S. It is impossible to believe—despite the protestations of liberal scholars today—that the framers of the Fourteenth Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Native persons.

Common Law and Citizenship

In 1898, the Supreme Court in U.S. v. Wong Kim Ark proclaimed that the Fourteenth Amendment adopted the common law definition of citizenship and therefore must be interpreted in terms of common law principles. The problem with this assertion is manifest: The idea of citizenship is completely unknown to the common law!

The common law recognizes “subjectship” but not citizenship. William Blackstone’s Commentaries on the Common Law of England, the authoritative source for the common law, details the common law of “subjectship.” At the core of “subjectship,” Blackstone argued, is the idea of “perpetual allegiance” or “natural allegiance.” “Natural allegiance,” Blackstone explained, is “due from all men born within the king’s dominions immediately upon their birth. … [I]t is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance.”

Blackstone admitted that the common law doctrine of birthright subjectship, originally propounded by Lord Edward Coke in Calvin’s Case (1608), was an inheritance from the “feudal system,” deriving from the “mutual trust or confidence subsisting between the lord and vassal.” And, Blackstone continues, “by an easy analogy the term allegiance was soon brought to signify all other engagements, which are due from subjects to their prince.”

The idea of citizenship, of course, was impossible in the feudal regime. Neither Coke nor Blackstone ever refers to birthright citizenship, and both describe the allegiance due to a king as involuntary and perpetual. This is the relation of master and subject in which subjects can never gain the elevated status of citizens who not only freely accept obligations but also have the obligation to assert rights.

James Wilson almost certainly had Blackstone in mind when in 1793 he noted that “under the Constitution of the United States there are citizens, but no subjects.” Wilson, a member of the Constitutional Convention and later a justice of the Supreme Court, thus rendered his judgment that American citizenship did not derive from the common law. Clearly the Declaration of Independence was a massive repudiation of the “feudal” doctrine of perpetual allegiance, which was at the heart of “birthright subjectship.” The Declaration boldly announces that “these United Colonies are … Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.”

It is utterly impossible to maintain that the Founders of the American regime were adopting the principle of birthright allegiance at the same time that they were dissolving their perpetual allegiance to the King of England. The principles of the Declaration transforms subjects into citizens by making the consent of the governed—not the accident of birth—the ground of citizenship. Chief Justice Fuller, in his dissenting opinion in Wong Kim Ark, rightly noted that “from the Declaration of Independence to this day the United States have rejected the doctrine of indissoluble allegiance.” Even before the Declaration, Thomas Jefferson in the Summary View of the Rights of British America (1774) spoke of the natural right of expatriation as “a right, which nature has given to all men, of departing from the country in which chance and not choice has placed them.”

Choice, of course, implies reason, and the exercise of the right of expatriation depends on reasoned choice—i.e., consent. Chance, however, is the ground of perpetual allegiance. If expatriation is in fact a natural right, then perpetual allegiance—birthright allegiance—is contrary to natural right. A regime based on natural right, one that posits consent as its moving principle, cannot ground its citizenship on the common law with its notion of “perpetual allegiance.”

It is difficult to avoid the conclusion that birthright allegiance and birthright subjectship were rejected by the Declaration no less than by the framers of the Fourteenth Amendment. To say nothing of other considerations no less important, “subjectship” and “citizenship” are not convertible terms.

The Expatriation Act of 1868

This conclusion is amply supported by the debate that surrounded the passage of the Expatriation Act of 1868—indeed, this act should be properly considered as a necessary companion piece to the citizenship clause of the Fourteenth Amendment. The act provided, in relevant part, that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”

Senator Howard, the architect of the Fourteenth Amendment’s citizenship clause, was a prominent figure in support of the legislation. He noted that the principles of the Declaration of Independence—prominent in the language of the act itself—meant that “the right of expatriation … is inherent and natural in man as man.”

The notion of birthright citizenship was frequently described in the debate as an “indefensible feudal doctrine of indefeasible allegiance.” One member of the House of Representatives expressed the general sense of the Congress when he concluded that “it is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.” Representative Frederick Woodbridge of Vermont, one of the principal proponents of the legislation, argued that the doctrine of perpetual allegiance “is based upon the feudal systems under which there were no free citizens … and the individual man [had] no personal rights; and it was from this source and system that Blackstone derived his idea of indefeasible and perpetual allegiance to the English Crown.”

But, Woodbridge continued, “the old feudal doctrine stated by Blackstone and adopted as part of the common law of England, that once a citizen by the accident of birth expatriation under any circumstances less than the consent of the sovereign is an impossibility. The doctrine … is not only at war with our institutions, but is equally at war with every principle of justice and of sound public law.”

This unequivocal repudiation of Blackstone makes it impossible to maintain that the common law was the basis of American citizenship. If it is true, as Jefferson maintained, that expatriation is a natural right, then perpetual allegiance and birthright citizenship are utterly alien to the principles of the Declaration, which grounds citizenship on the consent of those who are to be governed.

The Wong Kim Ark Case

Wong Kim Ark involved the question of whether someone born in the U.S. of legal immigrants was a natural born citizen in terms of the Fourteenth Amendment. Wong Kim Ark’s parents were, by treaty and statute, ineligible for American citizenship, and they retained their allegiance to the emperor of China. It is clear that the framers of the Fourteenth Amendment would not have considered their children born in the U.S. as subject to the jurisdiction of the U.S. Since the parents owed no allegiance to the U.S., their children would follow the allegiance of the parents who, while subject to the laws of the U.S., were not subject to its jurisdiction as understood by the architects of the citizenship provisions of the Fourteenth Amendment.

Ever since Wong Kim Ark’s mistaken holding that the Fourteenth Amendment adopted the common law of birthright “citizenship,” it has been assumed that all persons born within the geographical limits of the U.S. are automatically citizens of the U.S., regardless of whether the parents are within the jurisdiction of the U.S. or have legal residence in the U.S. Although some of the language of the majority opinion in Wong Kim Ark seems capacious enough to include the children of illegal aliens, there has been no Supreme Court decision explicitly holding that the children of illegal aliens are automatically accorded birthright citizenship.

The Section 5 Solution

After the passage of the Fourteenth Amendment (which all sides agreed did not extend citizenship to Native persons), Congress began to pass legislation inviting members of various Indian tribes to become citizens of the U.S. Any tribal member who consented to become a citizen would thus become “subject to the jurisdiction” of the U.S. by legislative enactment.

Under section 5 of the Fourteenth Amendment, Congress has the power to implement the provisions of the amendment. In the offer of citizenship to Native persons, Congress extended “jurisdiction” to those who had been admittedly excluded at the time of the adoption of the Fourteenth Amendment. Presumably, Congress could exercise the same legislative power to exclude as well as include. It would not require a constitutional amendment, as some claim, to exclude from “jurisdiction” the children of illegal alien parents who are born within the geographical limits of the U.S. Congress can simply exercise its section 5 powers—as it has done many times—to define by legislation those who are properly within the jurisdiction of the U.S.

Citizenship and the “Consent of the Governed”

James Madison frequently remarked that “all just and free government is derived from social compact.” This means that citizenship is grounded in the “consent of the governed.” There is no doubt that this vision of citizenship animated the framers of the Fourteenth Amendment.

Part 2: Garrett Epps: Birthright Citizenship: Believe Your Own Eyes

In the classic comedy film Duck Soup, Chico Marx attempts to impersonate the president of Fredonia, played by his brother Groucho. When his imposture is detected, he quickly asks, “Who you gonna believe, me or your own eyes?” In 21st century America, some are seeking to strip American citizenship from millions of American-born children. In effect, they ask us, “Who you gonna believe—us or the Constitution?”

Advocates of citizenship stripping offer a novel constitutional argument that the Fourteenth Amendment’s Citizenship Clause does not cover American-born children of undocumented aliens. This contention is wrong as a matter of constitutional text, wrong as a matter of history, and wrong as a matter of constitutional values. The Fourteenth Amendment is the key to American democracy. We tamper with it at our peril. And tampering—rewriting the amendment to suit a present political desire—is what Professor Edward Erler proposes.

Subject to the Jurisdiction Thereof

Let’s begin with the text: “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.” This first sentence of the Amendment in many ways is the keystone of the entire amendment. It makes clear that, as Justice John Marshall Harlan wrote decades later, “There is no caste here.” Regardless of the sins of parents, no American child is born a slave or a serf.

This text is clear, and for years no one questioned that the clause covers American-born children of immigrants, no matter what the parents’ immigration status. These children are governed by U.S. law. Their rights and property are subject to adjudication in our courts; under proper circumstances, they are, like any other American child, liable to arrest, imprisonment, and other restraint by our law-enforcement officials. If their parents abuse or neglect them, American child-welfare authorities may take them away from their parents and place them in foster homes. They are most assuredly subject to U.S. jurisdiction.

But not so fast—that’s just your own eyes. Erler says that the text can’t mean what it says. “If it is argued that everyone born in the United States is automatically subject to the jurisdiction of the United States, then the jurisdiction clause is rendered superfluous,” he writes. “But, of course, no interpretation of a written Constitution can render any of its provisions without force or effect—this would be tantamount to an amendment of the Constitution by mere interpretation.”

This abstract argument might have some merit if anyone had ever argued that the clause has no exceptions. But no one ever has, because both the language and the debates at the amendment’s framing make clear that there currently is one excepted class: children of foreign diplomats covered in the United States by diplomatic immunity. Why are they an exception? These children, like their parents, are not subject to either private suit or criminal trial in American courts. That’s part of diplomatic immunity. If diplomats or their families commit crimes or incur lawsuits, the American government must ask their home governments to pay the claims. The most this country can do to the diplomatic personnel themselves is ask for their immediate recall. They have a kind of extraterritorial status—they are not, in other words, “subject to the jurisdiction” of the United States.

So now we have a clear, useful meaning of the phrase “subject to the jurisdiction.” Erler contests this common-sense meaning. He notes correctly that at the time the clause was drafted, it was also understood to apply to another class of those born within the United States: Native Americans whose parents remained subject to their tribal governments. (Congress extended citizenship to tribal Indians by statute in 1924.) “It is impossible to believe,” he writes, “that the framers of the Fourteenth Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Native persons.”

Erler’s mistake here arises because he seems unaware (as many people are today) that, before assimilation became government policy in 1887, Indian tribes were treated as sovereign governments. In 1866, when the Fourteenth Amendment was drafted, tribal Indians were covered by a kind of extraterritoriality very much like that afforded to diplomats today. If tribal Indians stole the horses or property of non-Indians, the owners could not sue them in court. They had to apply to the United States, which would demand payment from the tribal government. And federal criminal penalties in Indian country did not apply to crimes committed by Indians against each other. Tribal Indians were not “subject to the jurisdiction” of the United States.

Do American-born children of undocumented aliens have anything like that extraterritoriality today? Believe your own eyes.

The Wong Kim Ark Case

That brings us to the history. The Citizenship Clause was introduced in the Senate by Senator Ben Wade of Ohio. (One of the many inaccuracies in Erler’s account is his attribution of authorship of the clause to Senator Jacob Howard. Howard was the floor sponsor of the original draft amendment, which included no citizenship language; the citizenship provision was first introduced on the floor by Wade and later rewritten in a closed Republican caucus. Erler is confused because Howard was the Senate sponsor, not the author, of the entire draft amendment.)

Wade explained, “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; but by the decisions of the courts there has been a doubt thrown over that subject.” (Wade was referring to the infamous Dred Scott decision of 1857, in which the Supreme Court held that persons of African descent could never be citizens of the United States.) The resulting debate flatly, explicitly negates Erler’s surprising claim that “the framers of the Fourteenth Amendment would not have considered” Wong Kim Ark ineligible for citizenship because his “parents were, by treaty and statute, ineligible for American citizenship and they retained their allegiance to the emperor of China.” It’s a surprising claim, because the framers of the clause did regard the clause as extending birthright citizenship to the American-born children of Chinese immigrants.

This isn’t my inference; they said so in so many words. When opponents of the amendment asked about children of Chinese immigrants, Republican Senator John Conness of California was unequivocal: “Children begotten of Chinese parents in California” would be citizens, he said. “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.”

Which Century Are We Discussing?

The record of the debates thus contradicts Erler’s argument. Perhaps for this reason, he rather quickly moves to other sources. Beginning even before American independence, he notes, the Founders of the Republic rejected “birthright allegiance.” He argues, “It is utterly impossible to maintain that the Founders of the American regime were adopting the principle of birthright allegiance at the same time that they were dissolving their perpetual allegiance to the King of England.”

But no one doubts that the Constitution of 1787 did not contain a principle of birthright citizenship. We are not construing that Constitution; the Fourteenth Amendment is an amendment, a change, to that Constitution. It was framed nearly a century later, in part because the nation’s leaders came to believe that the original Constitution’s silence on citizenship was a terrible flaw. It did not incorporate a common-law concept of “subjectship”; it was based on advanced nineteenth, not eighteenth, century thought.

Thus most of the sources Erler cites—Blackstone, Jefferson, James Wilson, and the Declaration of Independence—have no bearing on the question of what the Fourteenth Amendment means. Erler’s failure to grapple with the appropriate sources is a glaring hole in his argument. Whatever was thought when Jefferson wrote in 1774, by the time of the framing of the clause, the principle of birthright citizenship had been accepted by virtually all anti-slavery thinkers and politicians. Indeed, birthright citizenship was the official legal policy of the American government.

In a formal opinion in 1862, Attorney General Edward Bates wrote that “every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ‘natural born’ right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.” Bates himself saw only one (familiar) exception to the rule: “the small and admitted class of the natural born composed of the children of foreign ministers and the like.”[1]

Erler argues that his reading of the clause is supported by the 1868 debate over the Expatriation Act. It is a remarkable claim. His discussion of the Expatriation Act calls to mind another dialogue from Duck Soup in which Chico asks Groucho what has a trunk and lives in a zoo. “That’s irrelevant,” Groucho replies. The Expatriation Act is not, as Erler imagines, “a necessary companion piece to the citizenship clause.” In fact, there is no relationship at all between the two. The act was written in a different year, by different authors, on a different subject, and in a different Congress, than the Fourteenth Amendment.

In 1867—a year after the Fourteenth Amendment was framed—President Andrew Johnson noted that Britain was threatening to try naturalized American citizens of Irish birth for treason after a failed rebellion against the Crown. American citizens could not commit treason against Britain. But the British refused to recognize their renunciation of British nationality. Congress in the Expatriation Act affirmed the right of every foreign immigrant to move to the United States, naturalize as a citizen here, and give up his or her old citizenship. It is not clear, however, that the act had any applicability to native-born American citizens who wished to renounce their citizenship. After its passage, in fact, Secretary of State George Bancroft felt obliged to negotiate treaties with a number of countries that allowed Americans who moved to those countries to give up their citizenship.

I will cheerfully concede that American-born children of aliens have the right to renounce their American citizenship if they choose, because they are citizens by birth. That concession, however, bears no relation to the question of whether the American government can strip away their constitutionally guaranteed citizenship without their consent because it disapproves of something their parents did. The U.S. Constitution says it cannot.

Erler’s Many Mistakes

So nothing in the text or the framing debate supports Erler’s interpretation of the Citizenship Clause. Now consider the overall situation the framers of the amendment were reacting to. Slavery was a hereditary, lifelong subordinate status—what most anti-slavery thinkers referred to as a system of “caste.” The framers had set out to eradicate this kind of legal inequality. And the situation of foreign-born Americans was very much on their minds; how could it not have been? The percentage of foreign-born in the American population of 1866 was higher than it is today. Debate over immigration had split the nation during the 1850s; immigrants formed a crucial element of the Republican party coalition. Indeed, some of the very lawmakers who framed and passed the Fourteenth Amendment, such as California’s Conness, were immigrants themselves.

Would these men, committed to eradicating inequality, have silently written into their draft a provision allowing Congress or the states to strip a huge class of Americans of the “privileges or immunities” of citizenship? It is that interpretation that is literally “inconceivable.”

Much of Erler’s “evidence” is not evidence at all; none of it is enough to overcome Wong Kim Ark’s straightforward application of the text. That text had a clear meaning in 1866; the framers explained that meaning; that meaning had a rich background in 19th-century legal thought; that meaning accords with the structure and history of the Fourteenth Amendment. “All persons” means all our children. We can believe our own eyes.

Notes

[1] Citizenship, 10 Op. Att’y. Gen. 382 (1862).

Part 3: Edward J. Erler: Subject to the Jurisdiction: The True Meaning of the Fourteenth Amendment

Professor Garrett Epps’s response is amusing but hardly enlightening. The substance of his argument reminds me of Abraham Lincoln’s characterization of Stephen Douglas’s principal contention in the Lincoln-Douglas debates. It is, Lincoln said, “as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death.” And, Lincoln continued to uproarious laughter, “when it is brought to the test of close reasoning, there is not even that decoction of it left.”I agree with Epps that we ought not to tamper with the Fourteenth Amendment. But his misinterpretation of the intention of the framers of that notable instrument is the worst kind of tampering.

Not Radical

First, it is necessary it is to rebut the hysterical assertion, repeated by Epps, that denying birthright citizenship would strip “American citizenship from millions of American-born children.” American citizenship, once vested, cannot and should not be divested, and no one—certainly not me—advocates such a thing. But it is possible, by ordinary legislation implementing the provisions of the Fourteenth Amendment, to prevent the children of aliens illegally in the United States from becoming birthright citizens. Neither they nor their parents are “subject to the jurisdiction” of the United States as that phrase was understood by the framers of the Fourteenth Amendment.

The Fourteenth Amendment, I have written many times, was intended by its principal sponsors to be a completion of the American founding. Its specific design (along with the Thirteenth Amendment) was to bring the Constitution into formal harmony with the principles of the Declaration of Independence. Thaddeus Stevens, a member of the Joint Committee on Reconstruction, remarked during debate that “our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.”

References to the Declaration as “organic law” were so frequent throughout the debates that one can hardly doubt that the Reconstruction Congress conceived its principal task as completing the regime of the founding, a founding that was rendered incomplete because of its compromises with slavery. Thus, the Fourteenth Amendment was not a radical change, as Epps seem to maintain, but a reaffirmation of the founding principles. This was not only the view of the members of the Joint Committee on Reconstruction but a pervasive theme in the debates. It was also the view of such interested observers as Frederick Douglass, the great abolitionist leader.

Epps’s unsubstantiated contention that in the Fourteenth Amendment “the nation’s leaders came to believe that the original Constitution’s silence on citizenship was a terrible flaw” is utterly refuted by this quote from John Bingham, who is widely regarded as one of the principal architects of the Fourteenth Amendment. Speaking in support of the citizenship clause, Bingham remarked that “I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of our Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.”

It is also important to note that Bingham understood jurisdiction as a matter of allegiance—as did all the principal sponsors of the amendment. Jurisdiction did not mean to them—as Epps mistakenly claims—merely subject to the laws or the courts.

The Roots of Citizenship

To understand how the framers of the Fourteenth Amendment saw citizenship, it is necessary to take a step back. Equal protection of the laws—the constitutional expression of the Declaration’s central principle that “all men are created equal”—finds its origin in the social compact. James Madison frequently remarked that “all free and just government results from social compact.” And at the heart of the social compact is the recognition that legitimate government must rest on the “consent of the governed.”

The social compact contemplates a government that has as its principal goal the equal protection of the equal rights of all who tender their consent to be governed. The founding of any legitimate political community thus rests on the unanimous consent of those who agree to be governed. Once the community is established, it operates on the basis of majority rule, which, as Madison averred, serves as “a plenary substitute for unanimous consent.” Citizenship is thus based on consent, not the accident of birth. Once the community is established, new members can join only with the consent of those who make up the community. Thus reciprocal consent—of the community and of the individual—is required.

This is the genuine basis for constitutional government as understood by the framers of the Constitution (and the framers of the Fourteenth Amendment), and I am surprised that Epps seems to be wholly unacquainted with the foundations of the American Constitution. Epps also seems wholly oblivious to the fact that his own understanding of the Fourteenth Amendment and citizenship is the common-law understanding. He says that my explication of the Expatriation Act has no relation whatsoever to the Fourteenth Amendment. On the contrary, I used that discussion as additional proof that the framers of the Fourteenth Amendment did not adopt the common-law basis for citizenship. As I demonstrated in my initial statement—a point that Epps conveniently ignored—the common-law basis for citizenship was repudiated by the framers of both the Constitution and the Fourteenth Amendment and the authors of the Expatriation Act. This was preliminary to the conclusion that Wong Kim Ark mistakenly ruled that the common law was the basis for American citizenship.

How can Epps at one and the same time support the Wong Kim Ark decision and maintain that the Fourteenth Amendment created a new theory of citizenship wholly unconnected to the common law?

An Abstract Argument?

For a variety of reasons—most of them having to do with the existence of slavery—citizenship was not defined in the Constitution until the Fourteenth Amendment. Its immediate impetus, of course, was to extend citizenship to newly freed slaves. Prior to the Fourteenth Amendment, federal citizenship was, in practice, determined by state citizenship—all citizens of a state were automatically deemed citizens of the United States. The Fourteenth Amendment reversed this relationship, making federal citizenship primary and state citizenship derivative. Without the primacy of federal citizenship, states could withhold state citizenship from newly freed slaves—and their descendants—thereby denying them federal citizenship and the rights that were the necessary incidents of federal citizenship.

Epps says that my close construction of the language of the first clause of the Fourteenth Amendment is merely an “abstract argument.” Does he mean that the Fourteenth Amendment has no necessary relation to the Constitution? To paraphrase former House Speaker Nancy Pelosi in a different context, “Are you serious?” We have a written Constitution, which, as Madison noted, is properly understood as a contract between “we the people” and the government, and in order that its terms not be forgotten or misconstrued, it was reduced to writing.

Chief Justice Marshall captured Madison’s meaning when he remarked that “it cannot be presumed that any clause in the constitution is intended to be without effect.” Interpreting the Constitution in any way that renders part of it without meaning is simply tampering with the fundamental law. Every part of the Constitution must have meaning, even those parts we may not like. It might seem trivial to some, but the Constitution of 1789 was the first written constitution in history, and it was this written contract that transformed the subjects of the common law into citizens of a constitutional republic.

The Fourteenth Amendment requires two elements for citizenship. A person must be (1) born or naturalized in the United States and (2) subject to its jurisdiction. I don’t think it is necessary to quarrel here with Epps about whether Ben Davis or Jacob Howard was the actual author of the text. Both were members of the Joint Committee on Reconstruction, along with the previously quoted Thaddeus Stevens and John Bingham. All agreed on the meaning of the jurisdiction clause. As Lyman Trumbull, chairman of the Senate Judiciary Committee, remarked, “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction of the United States.” None of these distinguished politicians ever said that “subject to the jurisdiction” meant merely subject to the laws or the courts.

It is not enough to consult a law dictionary under the entry “jurisdiction.” It is necessary to study the debates. The reason that diplomats are not subject to the jurisdiction is that they have no allegiance to the U.S. Foreigners who are merely sojourners in the United States have no allegiance to the United States but are subject to its laws. Understood in its original meaning, any children born to such temporary visitors would not be natural born citizens of the United States because their parents, while subject to the laws of the United States during their sojourn, did not profess allegiance to the United States.

As for Indians, Epps contends that they were an exception because they belonged to domestic dependent nations that possessed a quasi-sovereignty within the United States. But the Supreme Court rightly ruled in Elk v. Wilkins (1884) that Indians living apart from their tribes—even those who renounced allegiance to their tribes and declared allegiance to the United States—were not “subject to the jurisdiction” of the United States merely because they were subject to its laws. The Court ruled that the consent required for citizenship must be reciprocal, and Elk’s unilateral attempt to put himself within the jurisdiction of the United States was invalid. At one time, at least, the Supreme Court believed that “subject to the jurisdiction” did not mean simply subject to its laws.

Epps would have us believe that illegal aliens can unilaterally put themselves within the jurisdiction of the United States—not only without its consent but in express violation of its laws—and confer citizenship upon their children without the consent of the United States. The citizenship clause cannot be read in a manner to dissolve the sovereignty of the United States. After all, a country that cannot determine who becomes citizens—or distinguish between citizens and aliens—is no longer sovereign.

Epps ad Absurdum

If we maintain, as Epps does, that all persons born within the geographical limits of the United States are automatically subject to its jurisdiction, then the jurisdiction clause is rendered superfluous by interpretation. If the framers of the Fourteenth Amendment understood that all persons born in the United States were automatically subject to its jurisdiction, they would have omitted the jurisdiction clause as redundant. But they did not.

It is a canon of constitutional construction (if, that is, we still have a written constitution) that every provision of the Constitution must be given force and effect. Epps’s construction renders the jurisdiction clause null and void. Talk about tampering with the Fourteenth Amendment! It is a fair question—although not one posed by Epps—to ask why, if the framers meant “allegiance,” they used the term jurisdiction. Senator Howard gave a credible answer: Allegiance, he said, was a term of art under the common law and would entail extending “subjectship” or citizenship to some persons without their consent. In other words, the framers of the Fourteenth Amendment sought to avoid all implications that citizenship was connected in any way with the common law of “birthright subjectship.” The Declaration and the Constitution rejected such feudal notions, and the Fourteenth Amendment’s citizenship clause must be read—as its framers intended—as a reaffirmation of that rejection.

In this regard, I believe that Wong Kim Ark’s ruling that the Fourteenth Amendment adopted the common law basis for citizenship is utterly mistaken. And Epps’s insistence that the Fourteenth Amendment adopted a new and heretofore unknown theory of citizenship cannot be credited, unless he argues that it was adopted by the framers of the Fourteenth Amendment “unbeknownst to themselves.”

Citizenship and Sovereignty

No country is sovereign if it cannot control who becomes citizens. If we believe that citizenship is merely an accident of birth, that foreigners in the United States, legally or illegally, can confer American citizenship on children born within our geographical limits, then they become citizens without the consent of the nation. Consent must be reciprocal—a request by the individual and reciprocity on the part of the United States.

In the case of illegal aliens, it is impossible to believe that the framers of the Fourteenth Amendment thought that they could become subject to the jurisdiction of the United States by violating its laws. But such is the argument of Professor Epps. I leave it to fair-minded readers to judge whether the homeopathic soup he has offered is substantial enough to sustain his argument.

Part 4: Garrett Epps: Birthright Citizenship: Misquotes, Mistakes, and Misleading Evidence Riddle Erler’s Case

From at least the time of Wong Kim Ark (1898) until the 1980s, when the issue of undocumented immigration became politically charged, almost no one seriously questioned that the Citizenship Clause means what it says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Every child born in the United States today—with the exception of children of diplomats covered by diplomatic immunity—is thus an American citizen by right of birth. This meaning conforms to the text of the clause and to the legal meaning of “subject to the jurisdiction” of the United States.At the outset of this debate, Professor Erler advanced a radically different interpretation of the Citizenship Clause, which he shares with some other citizenship scholars: that the clause covers only children of those lawfully present in the United States, because, he says, only they are in a special technical sense “subject to the jurisdiction.” This, he states, was “the intention of the framers.” If so, that intention does not appear in the language. Erler thus has the burden of proving the validity of this special technical interpretation.As we assess his evidence, bear in mind that Erler and I agree on one thing: “It is,” as he says, “necessary to study the debates.” “Studying the debates,” of course, means reading them thoroughly, understanding the political conceptions of the speakers, researching the thought and careers of the leading legislative players, and placing their remarks in the context of the ongoing political struggle over Reconstruction. The reader, who may perhaps lack time to study the Congressional Globe in detail, must decide which of us has “studied the debates” more thoroughly.

Evidence against Erler

When I corrected one of Erler’s factual mistakes about the debates in my last article, his response was huffy: “I don’t think it is necessary to quarrel here with Epps about whether Ben Davis or Jacob Howard was the actual author of the text. Both were members of the Joint Committee on Reconstruction.” What does this tell us about Erler’s “study [of] the debates”? Point one: No individual named “Ben Davis” served in the Thirty-Ninth Congress. No individual named “Ben Davis” or “Benjamin Davis” has ever served in the United States Congress at any time. The individual to whom I referred—by full name—in my first reply to Erler was Senator Benjamin Wade of Ohio. Was this, then, just a slip of the pen? Consider that Erler also stated that both Senator Jacob Howard of Michigan and “Ben Davis” were “members of the Joint Committee on Reconstruction.”

Point two: Jacob Howard was a member of the joint committee; Benjamin F. Wade (the individual Erler has misnamed “Davis”) was not. “Bluff Ben” Wade was one of the most important Radical Republican leaders in the 39th Congress—and indeed, as president pro tempore of the Senate in the 40th Congress, he came within one vote of becoming president of the United States when Congress impeached and tried President Andrew Johnson. Anyone familiar with the historical record not only would recognize his name but would know something about his career and committee memberships. Membership on the joint committee in particular was an important fact about members of the 39th Congress, and knowing the committee’s membership is crucial to understanding how Congress deliberated on the committee’s major handiwork, the Fourteenth Amendment. These errors suggest that Erler has not taken the time to actually “study the debates.”

That suspicion is strengthened by Erler’s subsequent claim that “not one of these distinguished politicians ever said that ‘subject to the jurisdiction’ meant merely subject to the laws or the courts.” As evidence, he cites an edited quotation from Senator Lyman Trumbull:

As Lyman Trumbull, chairman of the Senate Judiciary Committee, remarked, “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.”

The source of this partial quotation is the Congressional Globe, 39th Congress, first session, p. 2893, May 30, 1866. (The original can be accessed here.) As you can see, Erler has edited it heavily (the parts he included are in italics; the omitted parts I consider relevant are underlined):

What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes [sic], or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty?

Erler flatly asserted that “not one of these distinguished politicians ever said that ‘subject to the jurisdiction’ meant merely subject to the laws or the courts.” He made that assertion relying on an edited version of a speech in which Trumbull in fact said exactly that in so many words: “That is what it means. Can you sue a Navajoe Indian in court?” This definition—that “subject to the jurisdiction” meant amenable to service and adjudication in U.S. courts—was acknowledged by the proponents of the clause in the Senate debate in which it was framed and adopted. This definition excluded (1) children of foreign diplomatic and consular personnel, and (2) children of tribal Indians. It included all other children born in the United States. It was, in short, exactly the interpretation that has been unquestioned since at least the decision in Wong Kim Ark. It is the interpretation that arises from “studying the debates.”

Erler also relies on another quote, from Representative John Bingham, to the effect that American citizenship extended by pre-existing law to “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” Erler states that Bingham made this statement “in support of the citizenship clause.” He did not. The Bingham statement was made on March 9, 1866—seven weeks before the Fourteenth Amendment was drafted and nearly three months before citizenship language was introduced into the draft amendment on the Senate floor. Bingham was speaking in reference to a different measure: the Civil Rights Act of 1866. This was a statute—not a constitutional amendment—that relied on Congress’s naturalization power—not the Article V amendment process—and used different citizenship language—“all persons born in the United States and not subject to any foreign power,” not all those “subject to the jurisdiction.” (Follow the Congressional Globelink here, read Bingham’s speech on 1290–91, and judge for yourself whether Erler has accurately cited the context.)

Bingham’s remarks may have some general relevance to the concept of “allegiance,” but to claim that these remarks were made in the context of “the citizenship clause” or that they discuss its language indicates what can only be considered an extraordinarily hasty “study of the debates.”

Irrelevant Evidence

In truth, the debates seem not to interest Erler very much: Most of his argument centers around his claim that “to understand how the framers of the Fourteenth Amendment saw citizenship, it is necessary to take a step back.” He steps quite far back—back to James Madison and the “social compact,” to Enlightenment ideas of citizenship by consent, to quotations from Chief Justice John Marshall, to broad generalities about the Framers, and to discussions of the pre-Revolutionary common law of England. Back to everything but the debates. Erler himself concedes that we are discussing the intent of the lawmakers who framed the Citizenship Clause in 1866.

Quotes from eighteenth-century philosophers cannot trump the words of the nineteenth-century “framers of that notable instrument” themselves. Erler has not produced not one shred of credible evidence from the debates that the Citizenship Clause means something other than what it says or that the “framers of that notable instrument” secretly intended something other than what they wrote.

(Nor does one other piece of evidence he cites as supporting his position, the Supreme Court’s decision in Elk v. Wilkins. In Elk, the Court held that a Native American born as a member of a tribe, and leaving tribal jurisdiction afterwards, was not a birthright citizen, “no more … than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” This is precisely the meaning of “subject to the jurisdiction” that I cited in my first response to Erler and was cited by the proponents of the amendment in the debates. The Elk Court did not hold that the child of a non-tribal Indian, born off the reservation after parental renunciation, was not a birthright citizen—which would contradict the meaning I support. Erler’s claim that Elk in some way contradicts my reading, or supports his, is indefensible.)

The Clear Meaning of the Clause

As a matter of text, structure, and history, the clear meaning of the Citizenship Clause is, as Benjamin F. Wade said when he introduced the first citizenship language, that “every person, of whatever race or color, who was born within the United States [is] a citizen of the United States,” subject to the two exceptions noted above.

Let us begin with the text. “Interpreting the Constitution in any way that renders part of it without meaning is simply tampering with the fundamental law,” Erler says. “Every part of the Constitution must have meaning, even those parts we may not like.” The implication is that I read the “subject to the jurisdiction” language as “without meaning.” Erler here directly misstates my argument; I have said from the beginning that “subject to the jurisdiction” means today, as it meant in 1866, that children of foreign diplomatic and consular personnel are not covered by the clause. (Indian citizenship was secured by the Snyder Act in 1924.)

Next, consider the structure. The inclusive definition of citizenship in the first sentence of the amendment (the Citizenship Clause) is keyed to the sweeping language of the Privileges or Immunities Clause, and that central provision then spreads out to guarantee to citizen and non-citizen alike both “due process of law” and “the equal protection of the laws.” Nowhere in section 1—nowhere in the entire Amendment—do we read any language suggesting a desire to create a republic dominated by a hereditary elite, a two-tier society in which significant numbers of American-born children are excluded from citizenship and its privileges or immunities.

Finally, the history. The intellectual history of the anti-slavery movement centers around broad, paramount national citizenship acquired by birth. That definition was already the legal policy of the United States by an 1862 opinion of the attorney general. That definition is repeated, over and over, by the speakers in the Senate debate during the amendment’s adoption.

A Dubious Case

Erler has not disproved one jot or tittle of this evidence. Instead, he accuses me of being “wholly unacquainted with the foundations of the American Constitution” and “wholly oblivious” to the doctrines of the common law; I “conveniently ignore” the truth; I propose “the worst kind of tampering” with the Constitution.

I have no personal quarrel with Erler. But I am constrained to note that he has edited a quotation to suggest a meaning contradicted by the unedited text, he has misidentified a key player in the debate and misstated his role in it, he has cited remarks about one measure and stated that they were made about another, and he has directly misstated the meaning of adverse case authority. His novel interpretation of the clause thus rests on flawed evidence.

If this interpretation were made law on such a flimsy basis, it would damage the fabric of our society and our Constitution, punish innocent children, and represent “the worst kind of tampering” with the Constitution.